The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6211 of 2024 Kailash Chandra Chand …. Petitioner Mr. P.K. Mohapatra,Advocate State of Odisha and others …. Opp. Parties -versus- Mr. D.Mohapatra, A.S.C. Mr. S.K.Patra, Advocate for AG, Odisha CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 27.03.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing 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:- “It is prayed, therefore that this Hon’ble Court may graciously be pleased to; i) ii) Quash the impugned order vide No.2536 dated Admit and allow the writ petition and; 18.01.2024 under Annexure-5 and; iii) Direct the Opposite Parties to grant the Petitioner pension and other retirement dues under Old OCS (Pension) Rules, 1992 by counting so much of past service rendered in N.M.R. regular along establishment forthwith as has been granted to other similar placed employees and to grant period with // 2 // pension in his favour within a stipulated period of time and; iv) Further direct to disburse the arrears of pension within a stipulated period of time. v) And pass such other orders/directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and bona- fide interest of justice.” 4. Learned counsel for the Petitioner submitted that the present Petitioner was initially engaged as NMR on 01.01.1980. While working as such, the present Petitioner was brought over to the regular establishment to the post of Peon vide Office Order No.1817 dated 07.07.2009 of the Executive Engineer, Bhadrak (R&B) Division, Bhadrak. His GPF Account No.68033 was opened and subscription amount deposited. Thereafter, the Petitioner has retired from service w.e.f. 28.02.2022 on attaining the age of superannuation. Now the Petitioner has approached this Court challenging the order dated 18.01.2024 under Annexure-5 whereby his claim for grant of pension has been rejected by the Opposite Parties. 5. Learned counsel for the Petitioner further contended that earlier the Petitioner had approached this Court by filing W.P.(C) No.20287 of 2023. This Court disposed of the said writ petition vide order dated 17.07.2023 by directing the Opposite Parties to consider the case of the Petitioner in the light of the law laid down by the Odisha Administrative Tribunal in Sarbeswar Bhujabal vs. State of Odisha & Ors. (O.A. No.606 of 2015 decided on 05.07.2018). He further contended that in the case of Sarbeswar Bhujabal, who stands in a similar footing // 3 // with the Petitioner, after passing of the order by the Tribunal, he has been extended the pensionary benefits under Annexure-7 series of the writ petition. So far the present Petitioner is concerned, his representation was considered pursuant to the order dated 10.07.2023 passed by this Court in W.P.(C) No.20287 of 2023, however the same has been rejected vide order dated 18.01.2024 under Annexure-5 to the writ petition by the Opposite Party No.2 holding that the Petitioner was brought over to regular establishment on 08.07.2009 much after introduction of new rule. Therefore, he is not entitled to the pensionary benefits. 6. Learned Additional Standing Counsel, on the other hand, supported the impugned rejection order dated 18.01.2024 under Annexure-5 to the writ petition. He further contended that the authorities have not committed any illegality in rejecting the claim of the Petitioner. Further it was submitted that pursuant to the order dated 10.07.2023 in the earlier writ petition, the case of the Petitioner was considered by the Opposite Parties and by a detailed and speaking order, the claim of the Petitioner has been rejected by the authorities by holding that the Petitioner is not entitled to get similar benefits as has been granted to Sarbeswar Bhujabal. The impugned rejection order further reveals that since the Petitioner was brought over to regular establishment on 08.07.2009 much after introduction of NPS i.e. w.e.f. 01.01.2005, he is not eligible for pension under O.C.S.(Pension) rules, 1992. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is covered by the // 4 // aforesaid new rules. Therefore, his case cannot be considered under the OCS (Pension) Rules, 1992. Accordingly, it was prayed that the writ petition be dismissed as the same is devoid of merit. 7. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts of the present case, as well as the materials on record, this Court observes that the only question that is required to be adjudicated in the present writ petition is with regard to entitlement of the Petitioner to get pensionary benefits after retirement from service. In the event this Court comes to a conclusion that the Petitioner is entitled to the pensionary benefit, the Petitioner will be eligible to get the pension. The aforesaid issue, as it appears, is no more res integra. The same has been adjudicated by this Court repeatedly on a number of occasions. Apart from the judgment in Sarbeswar Bhujabal’s case (supra), similar issue was decided in Khageswar Jena v. State of Odisha and Ors. (W.P.(C) No.29993 of 2022 disposed of on 18.11.2022) and such order passed by this Court has already been confirmed by the Division Bench of this Court in writ appeal bearing W.A. No.301 of 2023 vide order dated 06.11.2023. Similar view has also been taken in many similar matters like in Sri Narsingh Choudhury v. State of Odisha and others (W.P.(C) No.31366 of 2023, in Pradip Kumar Sahu v. State of Odisha and others (W.P.(C) No.28909 of 2023). All the aforesaid employees belongs to the very same department except // 5 // Narsingh Choudhury. 8. In view of the aforesaid legal position, this Court has no hesitation in setting aside the impugned order vide No.2536 dated 18.01.2024 under Annexure-5 to the writ petition. Accordingly, the same is hereby set aside. Further the matter is remanded back to the Opposite Party No.1 with a direction to examine the case of the petitioner at par with Sarbeswar Bhujabal for grant of pensionary benefits by taking into consideration so much of the service period of the Petitioner so as to calculate the minimum qualifying service period for grant of pensionary benefits from NMR period of the Petitioner. Accordingly, minimum pensionary benefits be calculated as is due and admissible to the present Petitioner on the basis of the last pay drawn by him. Further, it is directed that in the event similarly situated employees, one of whom being Sarbeswar Bhujabal has been given such pensionary benefits, then the case of the Petitioner also be considered and the Petitioner shall be paid the minimum pension as is due and admissible to him within a period of two months from the date of communication of a certified copy of this order by the Petitioner. 9. With the aforesaid observation and direction, the writ petition is disposed of. ( A.K. Mohapatra) Judge Rubi Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 15-Apr-2024 11:46:50