The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.700 of 2023 State of Odisha and Others Appellants … Mr. Biplab Mohanty, Addl. Govt. Advocate -versus- Dr. Shelly Pattanaik and Another Respondents Mr. K.C. Sahu, Advocate (R/1) … CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Order No.
Decision
ORDER 30.10.2023 02. 1. Heard Mr. Biplab Mohanty, learned Additional Government Advocate for the State-Appellants and Mr. K.C. Sahu, learned counsel appearing for Respondent No.1. 2. The appellants have filed this appeal challenging the order dated 15th February, 2023 passed by the learned Single Judge in W.P.(C) (OA) No.967 of 2015 by which the orders impugned therein dated 16th February, 2015, 6th April, 2015 and 29th November, 2013 in respect of the applicant (Respondent No.1) have been set aside directing to treat Respondent No.1 under the GPF Scheme on the date of regularization. 3. Mr. Biplab Mohanty, learned Additional Government Advocate contended that the matter should be heard extensively. 4. Mr. K.C. Sahu, learned counsel for Respondent No.1 has contended that similar matter had come up for consideration before Page 1 of 5 this Court in W.P.(C) No.22057 of 2019 which was dismissed on 15th July, 2021 on the ground of delay and laches, as the same was filed with a delay of two and half years. Therefore, the writ petition having been filed with a delay was dismissed in view of the ratio decided by this Court in State of Odisha and Others v. Sanjulata Sethy and Others. Similar was the case of State of Odisha vrs. Aswini Kumar Panda, W.P.(C) No.38625 of 2020 disposed of on 19.04.2022 which was case of one year and five months’ delay. The said case being carried to the Supreme Court in SLP (C) Diary No.14632 of 2023, by the State of Odisha, the delay was condoned, but the said Court while dismissing the SLP, observed that “we are not inclined to interfere in the matter”. The learned counsel, therefore, submitted that the case of Aswini Kumar Panda (supra) has been affirmed on merits as decided by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.805 of 2015 vide order dated 15.07.2019 wherein the petitioner therein, was found entitled to the benefit as per the Odisha Civil Services (Pension) Rules, 1992 and the GPF (Odisha) Rules, 1938. Therefore, Sri Sahu urged not to show indulgence in the matter. 5. Having heard learned counsel for the parties and in view of the materials available on record, it appears that Respondent No.1 was appointed as a Homeopathy Medical Officer on contractual basis on 25.02.2004. While continuing as such, she was regularized vide order dated 10.09.2012 by appointing her along with others on regular basis w.e.f. 25.12.2008 and in the meantime, a notification Page 2 of 5 was issued by the Finance Department of the Government of Odisha on 17.09.2005 introducing a new restructured defined Contribution Pension Scheme for the new entrants in the State Government Service w.e.f. 1.1.2005. Respondent No.1 relied upon a clarification dated 04.04.2007 issued by the Government of Odisha and the then Inspector of Homeopathy sent the GPF application of Respondent No.1 along with the detailed particulars to the Principal Accountant General (A & E), Odisha for allotment of GPF number in her favour. Accordingly, GPF No.55336 M.J. (O) was allotted in her favour and after allotment of such GPF Number, regular subscription was made by deducting the subscription amount from her salary in each and every month. While the matter stood thus, all on a sudden, the Principal Accountant General (A & E), Odisha vide letter dated 16.02.2015 directed for cancellation of GPF Account in respect of the employees working under contractual basis prior to 1.1.2005 but regularized after 1.1.2005. 6. Challenging the aforesaid letter dated 16.02.2015, the Respondent No.1 approached the learned Tribunal by filing O.A. No.967 of 2015. After abolition of the Tribunal, the matter was transferred to this Court and placed before the learned Single Judge, who by the impugned order dated 15.02.2023 allowed the writ petition setting aside the order dated 16.02.2015 and directed to maintain the position of Respondent No.1 so far as it relates to continuance of the GPF scheme from the date of her regularization. Page 3 of 5 7. There is no dispute before this Court that the vacancy was occurred prior to commencement of the Finance Department notification dated 17.09.2005 giving effect the Odisha Civil Services (Pension) Amendment Rules, 2005, from 01.01.2005. Respondent No.1 was appointed on contractual basis but subsequently her services was regularized against such post by an order on 10.09.2012 giving effect from 25.12.2008. Admittedly, after 01.01.2005 the circular came into force. The fact remains that the vacancy had arisen prior to commencement of the Finance Department’s notification dated 17.09.2005 and she had been appointed on contractual basis prior to that date. Therefore, such fact ipso facto cannot deny her to enroll in the GPF Scheme as the grievance has been mitigated by taking into consideration the same and allowed Respondent No.1 to enter into the GPF Scheme. While Respondent No.1 was enjoying the benefit under the GPF Scheme, now all on sudden, the said benefit cannot be withdrawn because the right has already been accrued in her favour by entering into the GPF Scheme itself. Moreso, as has already been dismissed, in a similar matter the Apex Court in SLP (Civil) Diary No.14632 of 2023 disposed of on 03.07.2023 has upheld the order passed by this Court in the case of State of Odisha Vrs. Aswini Kumar Panda and Others (supra). In the circumstances, we are of the opinion that once the similarly situated persons have been extended the benefit in view of dismissal of SLP by the Apex Court, the said benefit cannot be denied to Respondent No.1 in the present proceeding. Page 4 of 5 8. In that view of the matter, this Court do not find any merit on the present appeal itself, accordingly, it is dismissed. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) JUDGE (M.S. RAMAN) SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Nov-2023 11:25:05 Page 5 of 5