The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3073 of 2024 Suresh Chandra Patra …. Petitioner Mr. S.Mishra,Advocate State of Odisha and others …. Opp. Parties -versus- CORAM: Mr. S.Das, A.G.A. JUSTICE A.K. MOHAPATRA Order No. ORDER 13.02.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well learned Additional Government Advocate for the State-Opposite Parties.
Decision
Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioner with the following prayers: “It is therefore prayed that the Hon'ble may be graciously pleased to admit the case, issue notice to the Opp. Parties and after hearing the case may direct the Opp. Parties to count the service rendered as G.P. Secretary(19 years 7 months 21 days) as qualifying service along with service as V.L.W(13 years 10 month and 04 days) and disburse full and final pension along with gratuity and other terminal benefits. And further be pleased to direct the arrear pension be paid to the petitioner from date of retirement in interest of justice. Any other relief as deemed fit and proper may be granted to the petitioner.” 4. The factual background leading to the filing of the present writ application is that the petitioner was initially appointed as Gram Panchayat Secretary on 01.12.1987 with a consolidated pay of // 2 // Rs.200/- at Punanga Gram Panchayat. Thereafter, the Government in Panchayati Raj Department vide resolution No.19242 dated 05.11.1997 raised the consolidated of pay to Rs.1100/- w.e.f.01.04.1997. The total expenses on such enhanced remuneration to the Gram Panchayat Secretary were bone by the Government, by the contingency fund. Therefore, it has been alleged in the writ application that the petitioner was getting his salary/remuneration from the State Government. 5. While continuing as Gram Panchayat Secretary the petitioner was promoted to the post of Village Labour Worker (VLW) vide order No.1057 dated 26.06.2007 by the Collector, Jagatsinghpur and such the petitioner joined in Tritol Block as VLW on 18.06.2007. It has also been stated in the writ application that as a VLW petitioner has rendered 19 years 07 month and 21 days of service and prior to his promotion to the post of VLW, the petitioner has rendered service as a Gram Panchayat Secretary for 13 years, 10 months and 04 days. It has also been accepted in the writ application that the post of VLW is a civil past and as such the same is a pensionable service. Accordingly, it has been prayed in the writ application that the petitioner be paid the proportionate pensionary benefits taking into consideration the length of service rendered by the petitioner as a VLW in the pensionable establishment. 6. Learned counsel for the petitioner in course of his argument submitted that the petitioner has rendered more than 13 years of service as VLW. He further contended that by taking the shortfall period from his service rendered as Gram Panchayat Secretary the entire service period of the petitioner can be rounded off to 25 years whereafter the petitioner is entitled to get full pensionary benefits which is to be calculated on the basis of last pay drawn by the // 3 // petitioner as VLW. In course of his argument learned counsel for the petitioner referred to the judgments of this Court in State of Orissa and others V. Niranjan Biswal in W.P.(C) No.6267 of 2018 decided on 30.08.2018. He also contended that a Division Bench of this Court in Niranjan Biswal’s case (supra) has upheld the judgment of the learned OAT, wherein the learned OAT has directed for grant of minimum pension to VLW who had worked for less than 10 years and as such his service was not pensionable. The learned Tribunal had also directed to calculate to pay minimum pension to the petitioner in Niranjan Biswal’s case (supra) by adjusting the shortfall period from the pensionable service, from the service as Gram Panchayat Secretary. Distinguishing the case of the present petitioner learned counsel for the petitioner submitted that the petitioner in the present case has served as a VLW for more than 13 years on being duly promoted to such post by the Collector-cum- District Magistrate vide order dated 26.06.2007. He also referred to the judgments of this Court in (Settlement class-IV job contract Employees Union, Balasore-Mayurbhanj District v. State of Orissa and others) decided on 24.03.1992 in OJC No.2147 of 1991. The order of this Court has been upheld by the Hon’ble Supreme Court in SLP No.28065 of 2019 by dismissing such SLP vide order dated 18.05.2022. In a similar case this Court in W.P.(C) No.39138 of 2021 vide order dated 15.12.2021 directed the State Opposite parties to release the pension and pensionary benefits as well as arrear pension in favour of the petitioner within a stipulated period of time. Copies of the orders relied upon by the learned counsel for the petitioner have been annexed to the writ application. 7. Similarly, learned counsel for the petitioner also referred to the judgment a Division bench of this Court in Padmanav Barik V. State // 4 // of Odisha and others in W.P.(C) No.3987 of 2017 which was disposed of on 19.04.2022. By referring to the aforesaid order, the learned counsel for the petitioner submitted that in Padmanav Barik’s case this Court while following the order passed in Nityananda Biswal V. State of Odisha and others, which was eventually upheld by the Hon’ble Apex Court, has directed the Opposite Parties extend all such benefits to the petitioner as has been done in the case of Nityananda Biswal. 8. In course of his argument learned counsel for the petitioner drawing attention of this Court to Rule 18 of O.C.S. Pension Rules, 1992 submitted that Rule18(2) of the aforesaid rules provides for an exception with regard to services which are not pensionable and as such are not eligible to get pension. In such category the work charge establishment has been included under 18(2)(II). However, he further contended that under Sub Rule 4 of Rule 18 further exception has been carved out. The said rule 18(4) provides as follows: - “Notwithstanding anything contained in Sub-Rule (1) Government may, by general or special order; prescribe any class of service or post which were previously born under Work Charged establishment or paid from contingencies to be pensionable.” On a careful analysis of Sub Rule 4 this Court observes that an 9. exception has been carved out and power has been conferred on the State Government to grant pensionary benefit to the employees in the work charge establishment by passing general or special orders, thereby specifying any class or service or post. 10. Learned counsel for the petitioner further contended that in an identical case, pursuant to direction of this Court which was eventually upheld by the Hon’ble Apex court, the Government of Odisha in PR and DW Department vide letter dated 31.01.2024 has // 5 // extended the benefits in favour of one Khetramohan Nayak and 21 others who are also working as VLWs. On perusal of a copy of order dated 31.01.2024, which was produced before this Court, this Court observes that the PR and DW Department, Government of Odisha while considering the case of Khetramohan Nayak and 21 others has taken note of the judgments by this Court as well as of the Apex court, and after obtaining the views of the law department, especially in the case involved in SLP (C) No.28065 of 2019 decided on 27.11.2019, had extended the pensionary benefits to such petitioner subject to the condition that the petitioners who have been covered under NPS are required to refund the employer’s share for coverage under the O.C.S. Pension Rules, 1992. Accordingly, considering the case of Khetramohan Nayak and 21 others as a special case, the PR and DW Department Govt. of Odisha has passed orders thereby sanctioning grant of minimum pension in favour of such persons. 11. Learned Additional Government Advocate on the other hand contended that petitioner is not entitled to any pensionary benefit. He further contended that the petitioner was engaged in the work charge establishment. It was also contended that the person who are working under the work charge establishment fall under the exclusion category as provided under 18(2) of the O.C.S. Pension Rules, 1992. More Particularly as provided in 18(2) (II). Therefore, the category of employees who have been working in the work charge establishment are excluded from the purview of the O.C.S. Pension Rules 1992. In reply to the judgment in Niranjan Biswal’s Case (supra) learned Additional Government Advocate submitted that they have been extended minimum pensionary benefits pursuant to the order passed by the Hon’ble Supreme Court. Further reply in to the letter dated // 6 // 31.01.2024, learned Additional Government Advocate submitted that the petitioners namely Khetramohan Nayak and 21 others were given minimum pension and such order granting minimum pension reveals that, such a step was taken on exceptional grounds and the same is not to be cited as a precedent in the future. 12. While further elaborating his argument, learned Additional Government Advocate referred to the judgments Hon’ble Supreme Court in Udaya Pratap Thakur and another V. State of Bihar and others in SLP (C) No.10653 of 2018 which was decided on 28th April, 2023 along with batch of similar other cases. Further, referring to the aforesaid judgment learned Additional Government Advocate submitted that a similar ground was raised before the Hon’ble Apex court by submitting that the entire period of service rendered as work charge as should be considered and be counted for the purpose of fixation of quantum of pension. Such a contention of the appellants was specifically rejected by the Hon’ble Apex Court by saying that the acceptance thereof would tantamount to regularizing their service from the initial appointment as work charge. The Hon’ble Supreme Court in the aforesaid judgment has also observed that in view of the several judgments of the Hon’ble Supreme Court there exists a distinction between regular employee appointed on a substantive post and a work charge employee working under work charge establishment and, that work charge employees are not appointed on a substantive post. Therefore, it has been held that the services rendered as work charge cannot be counted for the purpose of pension/fixation of quantum of pension. While saying so the Hon’ble Apex Court was also observed that taking into consideration the considerable length of service as work charge employees, and thereafter the services having been regularized, such employees // 7 // cannot be denied the pension on the ground they have not completed the qualifying service period for pension. In view of the aforesaid legal position learned Additional Government Advocate submitted that the petitioner is not entitled to any pensionary benefits as has been claimed in the present writ application. 13. Having heard the learned counsels appearing for the respective parties, on a careful examination on their contentions as well as on a scrutiny of the background facts of the present case and on careful examination of the materials on record, this Court observes that the petitioner was initially engaged as a Gram Panchayat Secretary on 01.12.1987. After working for more than 21 years continuously as Gram Panchayat Secretary, the petitioner was appointed as a VLW by order of the District Collector dated 26.06.2007. As a VLW worker they are drawing salary from the contingency fund of the State Government. In the post of VLW, the petitioner has worked for more than 17 years. Therefore, the case of the petitioner cannot be simply treated as case of a work charge employee and accordingly his claim for pensionary benefit be brushed aside by this Court. While considering the case of the petitioner this Court found that the petitioner has been rendering his service for close to 38 years. In other words, the entire service period of the petitioner has been scarified while serving as a Gram Panchayat Secretary initially and thereafter as a VLW. The service book which has been annexed to the writ application Annexure-2 also reveals that the petitioner was given promotion by the Collector, Jagatsingpur pursuant to order dated 18.06.2007 and he was granted a scale of pay as would be evident from the service book annexed to the present writ application. Furthermore, taking into consideration the long service period of the present petitioner, this Court is of the considered view // 8 // that, the persons like the present petitioner, cannot be thrown out by the Government and be left high and dry. It is pertinent to mention here that it is not disputed that the petitioner was appointed as regular VLW by order of the Collector, Jagatsinghpur and he was granted a scale of pay. 14. This Court has further examined the provisions contained in rule 18(4) of the O.C.S. Pension Rules 1992. On a careful scrutiny aforesaid provision, this Court is of the considered view of the same has been carved as an exception to Rule 18(2) of the pension rules which has excluded the work charge employees from its purview Rule 18(4) which has been worded with words “notwithstanding anything contained in sub rule 1” speaks a volume about the intention behind having such rule in the rule book. Sub-rule 4 of rule 18 confers the power on the Government to declare any class of work charge establishment as a special class by passing a general or special order in respect of those employees who have been paid from the contingency and to declare them as pensionable service. By applying the aforesaid rules 18(4) to the fact of the present case this Court is of the considered view that the case of the petitioner deserves to the petitioner by the Government under the aforesaid rule 18(4) by taking into consideration the fact that the petitioner has been rendering his service for more than 13 years as a VLW. 14. In view of the aforesaid analysis of law, and on examination of the factual background of the present case, this Court is of the considered view that the case of the petitioner deserves to be considered under Sub-rule 4 of Rule 18 by the State Government. This Court further observes that 4 the facts that present case complies with all the requirements as provided in sub-rule 4 of Rule 18 so as to declare the VLW as a special class by passing general or special // 9 // order, and declaring such post to be pensionable service. Accordingly, the Opposite party No.1 is directed to consider the case of the petitioner under Rule 18(4) of the O.C.S. pension Rules, 1992, keeping in view the aforesaid analysis and the factual background and, pass a speaking and reasoned order in the case of the petitioner. Further, it is directed that in the event Opposite party No.1 comes to a conclusion that the petitioner satisfies all the requirements of Rule 18(4), then necessary follow-up orders, as has been provided sub Rules, be passed by taking into consideration the entire VLW period of service of the petitioner as pensionable service and accordingly, the petitioner be granted all pensionary benefits as is due and admissible as per law, within a period of three months from the date of communication of a certified copy of this order by the petitioner. 15. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Rubi ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Orissa High Court Date: 13-Mar-2024 15:20:51