The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3803 of 2024 Arjun Patel …. Petitioner Mr. S.B.Jena,Advocate -versus- State of Odisha and others …. Opp. Parties Mr.D.Mohapatra, A.S.C.. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 26.02.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well learned Additional Standing Counsel Advocate for the State-Opposite Parties. 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: “Under the circumstances, it is humbly prayed that this Hon’ble Court may graciously be pleased to issue a writ in the nature of mandamus or any other appropriate writ/writs by directing the Opposite Parties to sanction the revised pension and pensionary benefits in favour of the Petitioner by counting his past service rendered as Gram Panchayat Secretary w.e.f. 25.10.1993 to 10.06.2009. And further be pleased to direct the Opp.Parties to grant all consequential and service benefits. And pass such other order/orders as would be deemed fit and proper” 4.
Facts
The factual background leading to the filing of the present writ application is that the petitioner was initially appointed as Gram // 2 // Panchayat Secretary on 25.10.1993. While continuing as Gram Panchayat Secretary, the petitioner was promoted to the post of Village Labour Worker (VLW) with effect from 10.06.2009 vide Office Order No.240 issued by the Collector, Jharsuguda. Thereafter, the Petitioner retired from service w.e.f. 31.05.2021 on attaining the age of superannuation. 5. It is also submitted by the learned counsel for the Petitioner that the Opposite Party no.3 allowed revised Grade Pay at the rate of Rs.4200/- to the Petitioner with effect from 01.01.2013. It is further contended that the past service rendered by the Petitioner as Gram Panchayat Secretary has not been counted, as a result of which he is getting a meager amount. The Government vide Notification dated 30.10.1998 has fixed the salary of G.P. Secretary whereby the Government has decided to pay them monthly consolidated remuneration of Rs.2200/- with effect from 01.11.1998. Therefore, learned counsel for the Petitioner submitted that the total expenses towards such remuneration were borne by the State Government from Government contingencies. As such he contended that the Petitioner was getting salary from the State Government. 6. It has also been stated in the writ application that as a VLW petitioner has rendered about 12 years of service and prior to his promotion to the post of VLW, the petitioner has rendered his service as a Gram Panchayat Secretary for about 28 years. It has also been contended in the writ application that the post of VLW is a civil post 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. // 3 // 7. Learned counsel for the petitioner in course of his argument submitted that the petitioner has rendered about 12 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 28 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 petitioner as VLW. In
Legal Reasoning
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 and 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 17 years on being duly promoted to such post by the Collector-cum- District Magistrate vide order dated 13.03.2006. He also referred to the judgments of this Court in (Settlement class-IV job contract Employees Union, Balasore-Mayurbhanj District vs. 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 vide order dated 18.05.2022. 8. Similarly, learned counsel for the petitioner also referred to the // 4 // judgment of a Division bench of this Court in Padmanav Barik V. State 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 to extend all such benefits to the petitioner as has been done in the case of Nityananda Biswal. 9. 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.” 10. On a careful analysis of Sub Rule 4 this Court observes that an 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. 11. Learned Additional Standing Counsel on the other hand contended that petitioner is not entitled to any pensionary benefit. He // 5 // 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. 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 employee 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 charged employee working under work charge establishment and, that work charged employees are not // 6 // 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 has also observed that taking into consideration the considerable length of service as work charge employees, and thereafter the services having been regularized, such employees 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 Standing Counsel 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 of 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 25.10.1993. After working for about 28 years continuously as Gram Panchayat Secretary, the petitioner was appointed as a VLW with effect from 10.06.2009 by order of the District Collector. 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 about 12 years until retirement on 31.05.2021. 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 26 years. In other words, the entire service period of the petitioner has been sacrificed while serving as a Gram Panchayat Secretary initially and thereafter as a VLW. Furthermore, // 7 // taking into consideration the long service period of the present petitioner, this Court is of the considered view 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, Jharsuguda 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 charged 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 employees 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 be considered 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 one year as a VLW. 15. 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 the facts of the present case complies with all the requirements as provided in sub-rule 4 of Rule // 8 // 18 so as to declare the VLW as a special class by passing general or special order, and declaring such post to be pensionable service. Accordingly, the Opposite party No.3 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.3 comes to a conclusion that the petitioner satisfies all the requirements of Rule 18(4), then necessary follow-up orders, as has been provided in sub Rules, be passed by taking into consideration the total length of 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. 16. With the aforesaid observation/direction, the writ petition is
Arguments
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
Decision
disposed of. Urgent certified copy of this order be granted on proper application. RKS ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 11:54:36