The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8198 of 2023 Hemendra Mohanta …. Petitioners Mr.Swapnil Roy, Advocate -versus- State of Odisha and others ….
Legal Reasoning
Opposite Parties Mr.T.Patnaik, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 28.03.2023 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. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit the Writ Petition and issue Rule NISI to the Opp.Parties to show cause as to i) Why the impugned order dated 28.10.2022 under Annexure-9 passed by the Opp.Party No.1 in the facts and circumstances of the case, will not be declared as illegal and as such liable to be set aside; and ii) Why the Opposite Parties will not be directed to extend the financial benefit in favour of the Petitioner w.e.f. 01.03.2009 within a stipulated time; and iii) Why the Opposite Parties will not be directed to sanction and disburse the differential salary on such extension of the benefit w.e.f 01.03.2009 within a stipulated time; // 2 // And if the Opp.Parties do not show cause then the Rule be made absolute by issuing appropriate writ/writs and any other order as deem fit be passed;” 3. It is submitted by the learned counsel for the Petitioner that the Petitioner was initially appointed as NMR with effect from 01.06.1989. On 28.02.2009 the Government in the Water Resources Department decided to bring over 5702 number of NMRs employees to Work Charged Establishment with immediate effect. Accordingly, a guideline was issued by the State Government on 19.06.2009 in the Water Resources Department and as per the guidelines, the NMR employees are to be brought over to the Work Charged establishment with effect from 01.03.2009. The copy of the guidelines has been annexed as Annexure-2 to the Writ Petition. Accordingly an Office order was passed by the Chief Engineer and Basin Manager, Baitarani Subarnarekha and Budhabalanga Basin on 18.09.2009 by bringing over the NMR employees to the Work Charged establishment with effect from 01.03.2009. It is submitted by the learned counsel for the Petitioner that although the Petitioner was brought over to the Work Charged establishment, however he has not been paid with effect from 01.03.2009. It is further contended by the learned counsel for the Petitioner that being aggrieved by such conduct of the Opposite Parties, a group of employees approached the Orissa Administrative Tribunal by filing O.A.NO.3261(C) of 2014 and a batch of other original applications. The Orissa Administrative Tribunal by order dated 25.04.2017 disposed of the aforesaid Original Application by a common order by holding that the applicants were brought over to Work Charged establishment vide order dated 01.03.2009 and they have joined on the same day or // 3 // next date and that the applicants were brought over to the Work Charged establishment vide order dated 31.12.2009 and with effect from 01.03.2009. However, they were not allowed the financial benefit with effect from the date of joining in the Work Charged Establishment. Eventually the Original Application was disposed of by directing that since the applicants were brought over to Work Charged establishment, with effect from 01.03.2009, there is no plausible reason not to give service and financial benefit to the applicants with effect from 01.03.2009 and accordingly direction was issued to extend all service and financial benefit to the applicants with effect from 01.03.2009 in the Work Charged establishment and accordingly arrear and differential dues was directed to pay to the applicants. The order passed by the Tribunal was assailed before this Court at the instance of the State Government vide W.P.(C) No.23222 of 2017. Vide order dated 18.05.2018 the said Writ Petition was dismissed in terms of a common order passed in W.P.(C) No.24361 of 2017. It is further contended by the learned counsel for the Petitioner that the Division Bench of this Court was also upheld the direction of the Tribunal, who allowed all service and financial benefit to the applicants with effect from 01.03.2009. Learned counsel for the Petitioner further contended that the order passed by the Division Bench dated 18.05.2018 in W.P.(C) No.24361 of 2017 was assailed before the Hon’ble Supreme Court by the State-Opposite Parties by filing SLP(C) Diary No.11066/2020. Vide order dated 13.07.2020 the Hon’ble Apex Court has dismissed the SLP. As such the order passed by the Tribunal has attained its finality. 4. Learned counsel for the Petitioner further contended that relying upon the judgment of the Tribunal referred to hereinabove, // 4 // the Petitioner earlier approached this Court by filing W.P.(C) No.18384 of 2022, which was disposed of by order dated 04.08.2022 by directing the Opposite Parties to take a decision on the Petition of the Petitioner within a period of three months. Pursuant to the order passed on the earlier round Writ Petition, the Opposite Party No.1 vide order dated 28.10.2022 has rejected the claim of the Petitioner for absorption under regular establishment and extending financial benefit with effect from 01.03.2009. Challenging such rejection of claim of the Petitioner the present Writ Petition has been filed by the Petitioner. 5. Learned Additional Standing Counsel on the other hand while supporting and justifying the rejection order dated 28.10.2022 submitted that the authorities have taken note of the grounds raised by the Petitioner and pursuant to the order passed by this Court dated 04.08.2022 in W.P.(C) No.18384 of 2022 the prayer of the Petitioner has been considered and since the same was found to be devoid of merit, the Opposite Party No.1 has rejected the prayer of the Petitioner by passing a reasoned and speaking order. However, learned Additional Standing Counsel did not dispute the order passed by the learned Tribunal, which has been affirmed by the Hon’ble Supreme Court. 6. On a careful consideration of the background facts of the present case and in view of the order passed by the learned Tribunal in similar matters, which has not only been confirmed by this Court, but also confirmed by the Hon’ble Supreme Court, this Court is of the considered view that in the event the Petitioner stands in a similar footing with the applicants in O.A. No.3261(C) of 2014, then he is also entitled to similar benefit. In such view of the matter, this Court is of the view that the order passed by Opposite Party No.1 dated // 5 // 28.10.2022 having not taken into consideration the order passed in Original Application, which was confirmed by this Court as well as by the Hon’ble Supreme Court, is unsustainable in law and the same is liable to be set aside. Accordingly, the same is hereby set aside. Further the matter is remitted back and be considered afresh and in the event it is found that the Petitioner is similarly placed with the applicant in O.A.No.3261(C) of 2014 then the benefit extended in favour of such applicant be extended to the present Petitioner within a period of three months from the date of taking such decision. 7. With the aforesaid observation the Writ Petition stands disposed of. 8. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge