SwetapadmaSamal v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9032 of 2024 1) Saroja Kumar Nayak 2) Nalin KumarPatnaik 3) SubrataChaudhury 4) SimanchalSatpathy 5) N. Santosh KumarChaudhury 6) Bibhu Prasad Panda 7) SudhiRanjan Das 8) Sarat Ch.Panigrahi ..... Petitioners Represented By Adv. - BudhadevRoutray, Sr. Advocate -versus- 1) State Of Odisha 2) Engineer-in-Chief, Water Resources, Odisha ..... Opposite Parties Represented By Adv. – Mr. Saswat Das, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 16.04.2024 01. 1. 2. This matter is taken up through Hybrid mode. Heard Mr. BudhadevRoutray, learned counsel for the Petitioners as well as Mr. Saswat Das, learned Additional Government 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 Petitioners with the following prayers:- “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to i) Admit the writ application. Page 1 of 6. ii) Call for the record. iii) Issue a writ in the nature of mandamus or anyother writ/writs direction /directions directing the opposite parties more particularly the opposite party No. 1 to extend the benefit of pension under the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938 by counting the service of the petitioners w.e.f. 27.02.2004 i.e. the date of their contractual appointment against the substantive vacancies of Assistant Engineers in terms of the Judgment dated 22.09.2023 passed in W.P. (C) No.26508/2017 [ SwetapadmaSamal Versus State of Odisha and others]. iv) And further the Opposite parties be directed to extend all the consequential financial and service benefits to the petitioners within a reasonable time to be stipulated by this Hon’ble Court. And/or pass any other order/orders, direction/directions as this Hon’ble Court deems fit and proper for the ends of justice.” v) 4. The factual background of the present writ application in short is that the Govt. of Odisha took a policy decision on 14.10.1987 in the Works Department and pursuant to such decision, the Petitioners, who have the requisite qualification were engaged as NMR/DLR with a consolidated salary of Rs.1500/- per month. Thereafter the Petitioners were engaged on contractual basis by virtue of the order passed by Engineer-in-Chief, Water Resources Department on 27.02.2004 with a consolidated salary of Rs.7000/- per month against regular sanctioned vacant post of Assistant Engineer. On 08.02.2013, the Government took a decision to bring over the NMR Graduate Engineers including the Petitioners, who were engaged prior to 12.04.1993 and were continuing on contractual basis, against the regular sanctioned vacant Page 2 of 6. posts of Assistant Engineer to the post of work charged Assistant Engineer in the scale of pay of Rs.9,300/- to Rs.34,800/- with G.P. of Rs. 4,600/-. 5. While the matter stood thus, the cadre was restructured in the Water Resources Department, Govt. of Odisha on 21.03.2013 and pursuant to such restructuring, the entry level cadre was Assistant Executive Engineer in Jr. Class-1. 6. While the matter stood thus, the Petitioners approached the Odisha Administrative Tribunal by filing an O.A. with a prayer not to make any recruitment pursuant to the advertisement dated 17.04.2015 with a further prayer for regularization of their service as against the posts of Assistant Executive Engineer. Furthermore, till such decision is taken, the Petitioners may be allowed and be treated as Work charged Assistant Executive Engineers against such sanctioned posts which were upgraded after restructuring of the cadre and to extend all service benefits attached to the posts of Assistant Executive Engineer. The learned Odisha Administrative Tribunal was pleased to allow the original application vide order dated 16.05.2018. Thereafter, this Court vide order dated 15.01.2021, passed in W.P.(C) No.1465 of 2021 which was filed by the present Petitioner and W.P.(C) No.1470 of 2021 filed by one Nalini Kumar Patnaik and others, directed the State authorities to work out the direction of the Tribunal vide order dated 16.05.2018 for taking a policy decision and to absorb the applicants in the regular post of Assistant Executive Engineer (Civil). In compliance to such order of this Court, the Govt. in Water Resources Department decided to bring over the Work charged Assistant Executive Engineer including the present Petitioners to the regular establishment against the regular posts of Assistant Executive Engineer (Civil), Jr. Class-1 (Group A), service of the OES cadre by relaxing Rule-4(a) and Rule-7 Page 3 of 6. of the Odisha Engineering Service (method of recruitment and condition of service) Rules, 2012 read with the provisions of explore Odisha Services Engineers Rules, 1941 as a one-time relaxation. 7. On such regularization of service of the Petitioners in the regular establishment, a final gradation list was published on 07.02.2023 in respect of the Assistant Executive Engineer cadre vide DOWR letter No.3388 dated 07.02.2023. The name of the Petitioners find place in the same gradation list. Learned counsel for the Petitioners further contended that on the basis of the seniority of the Petitioners, the Petitioners were promoted to the posts of Executive Engineer (Civil) on 02.08.2023 vide DOWR notification No.21834. 8. Learned senior counsel appearing for the Petitioner further submitted that a Division Bench of this Court in Swetapadma Samal v. State of Odisha and others in W.P.(C) No.26508 of 2017 disposed of vide judgment dated 22.09.2023, wherein the Petitioners were appointed as Junior Engineer on 07.07.2003, has categorically held that the said Petitioners are eligible to the benefits under the OCS Pension Rules, 1992 and GPF (O) Rules, 1938 by recording their date of initial appointment on contractual basis i.e., 07.07.2003. A copy of the said judgment has been filed along with the present writ application and marked as Annexure-13. Learned senior counsel for the Petitioners further referred to the judgment and also referred to the order dated 28.02.2024 passed in W.P.(C) OAC No.86 of 2018 (in the matter of Saroj Kumar Panda and others v. State of Odisha and others) wherein the learned Coordinate Bench in an identical matter has also taken a view that the Petitioners are entitled to the pensionary benefits under the OCS Pension Rules, 1992 as well as the benefits under the GPF (O) Rules, 1938. 9. On such grounds learned Senior Counsel for the Petitioners Page 4 of 6. submitted that the law is well-settled in view of the judgments of the Division Bench in Swetapadma Samal’s Case (supra). Accordingly it was prayed that the Opposite Parties be directed to extend the benefits under the OCS Pension Rules, 1992 as well as the GPF (O) Rules, 1938 to the Petitioners. 10. Mr. Routray, learned Senior Counsel appearing for the Petitioners contended that the Petitioners had earlier submitted a representation before the Opposite Party No.1 dated 12.06.2023 which has been acknowledged by the Opposite Party No.1. However, no final decision has been taken on such representationof the Petitioner. 11. Learned Additional Government Advocate for the State- Opposite Parties on the other hand contended that the Petitioners have not approached the competent authority before approaching this Court. he further contended that it is not known as to whether the facts of the Petitioners’ case are similar to the cases which have been referred to by Mr. Routray, learned Senior Counsel appearing for the Petitioners. He further contended that in the event, this Court directs the Petitioner to approach the Opposite Party No.1 by filing a representation taking therein all the grounds along with the supporting documents, with a further direction to the Opposite Party No.1 to consider the same in accordance with law and disposed of the same within a stipulated period of time by taking into consideration the judgments cited by Mr. Routray, learned Senior Counsel appearing for the Petitioners, he will have no objection to such a direction. 12. Having heard the learned counsels appearing for the respective parties on a careful examination and the materials on record and considering the submission made by the counsels, this Court grants liberty to the Petitioners to approach the Opposite Party No.1 by filing Page 5 of 6. a fresh representation taking all the grounds available to them along with supporting documents within a period of two weeks from today. In such eventuality, the Opposite Party No.1 shall do well to consider the case of the Petitioners by taking into consideration the law laid down by the Division Bench of this Court in Swetapadma Samal’s case (supra) as well as the order passed by the Coordinate Bench in Saroj Kumar Panda’s case (supra) and the representation of the Petitioners be disposed of by passing a speaking and reasoned order within a period of eight weeks from the date of communication of a certified copy of this order by the Petitioners along with their representation before the Opposite Party No.1. The final decision so taken be communicated to the Petitioners within a week from the date of taking such decision. It is further directed that in the event, the Opposite Party No.1 comes to a conclusion that the Petitioners stands in a similar footing with the persons who are parties to the above noted judgments, then similar benefits be extended in favour of the Petitioners as expeditiously as possible, in the absence of any other legal impediment, within two months from the date of taking such decision. 13. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra ) Judge S.K. Rout Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Apr-2024 20:21:33 Page 6 of 6.