The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9322 of 2024 Manorama Swain ..... Petitioner Represented By Adv. - Sameer Kumar Das ..... Opposite Parties Represented By Adv. – Mr.D.Nayak, AGA -versus- 1) State Of Odisha 2) Collector And Dist.magistrate, Jagatsinghpur 3) Cdpo, Kujanga 4) Accountant General (a And E) , Odisha THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA CORAM: Order No. ORDER 02.05.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel for the Petitioner as well as the learned
Decision
Additional Government Advocate. Perused the Writ Petition as well as the documents annexed to this Writ Petition. 3. The Petitioner has filed the present Writ Petition with the following prayer: including “Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased to quash the order dated 15.04.2019 of the Opp.PartyNo.1 under Annexure-12 and direct the under Opp.Parties OCS(Pension) Rules, 1992 to deduct GPF against GPF No.MSDO36144 and to grant pension and other retiral benefits to the Petitioner on retirement w.e.f. 01.05.2024 as her case is squarely covered by the ratio decided in the case of State of Odisha and others vs. Niranjan Biswal (W.P.(C) No.6267 of 2018 disposed of on Petitioner the Page 1 of 6. 30.08.2018, which has been confirmed by the Hon’ble Apex Court in SLP(C) No.28065 of 2019 disposed of on 18.05.2022; And/or pass any other appropriate writ/writs, order/orders and direction/directions in the fitness of the case.” 4. It is submitted by Mr.Das, learned counsel for the Petitioner that being aggrieved by the order dated 15.04.2019 under Annexure- 12 thereby rejecting the representation of the Petitioner pursuant to order dated 20.11.2017 passed in O.A.No. 1786(C) of 2015, the Petitioner has approached this Court challenging the said order. He further contended that earlier the Petitioner has approached the learned Orissa Administrative Tribunal with a prayer for a direction to the Opposite Parties to consider his past service rendered as Anganwadi Worker while calculating the pensionary benefit in the post of ICDS Supervisor (regular). Learned Tribunal vide order dated 20.11.2017 disposed of the said Original Application with a direction to the Opposite Parties to consider the case of the Petitioner and to dispose of the grievance contained in the representation within a period of three months from the date of communication of that order. 5. It is also contended by the learned counsel for the Petitioner that although the case of the Petitioner was considered by the Government of Odisha, Department of Women and Child Development and Mission Shakti, pursuant to the order passed by the Tribunal in the aforesaid Original Application. However, the prayer of the Petitioner for counting of past service as Anganwadi Worker for the purpose of calculation of pensionary benefit was rejected by the Government vide impugned order under Annexure-12 Page 2 of 6. to the Writ Petition. While rejecting the prayer of the Petitioner the Opposite Party No.1 has specifically stated that in view of the new pension Rule of the Government of Odisha, as amended in the year 2005 which came into force with effect from 01.01.2005, all employees appointed after 01.01.1985 are to be covered under the new pension system. Therefore, the GPF No. that was allotted to the Petitioner was cancelled and a new PRAN account Number was stopped since May, 2016. It is also stated that in view of the observation in Finance Department letter dated 18.07.2007 all Departments and subordinate offices not to forward the application of such employees for opening of GPF Account who have been appointed after 01.01.2005 and it has been specifically stipulated in the letter of the Finance department that such GPF Account shall not be opened with the prior concurrence of the Finance Department. In view of the aforesaid position, the prayer of the Petitioner was considered and rejected by the Opposite Party No.1. 6. Learned counsel for the Petitioner drawing the attention of this Court to the judgment of this Court in State of Odisha and others vrs/ Niranjan Biswal in W.P.(C) No.6267 of 2018 disposed of on 30.08.2018. By referring to the aforesaid judgment the learned counsel for the Petitioner contended that the issue of counting of past service of VLW in the State of Odisha was not considered by this Court in the above noted case of Niranjan Biswal (supra). A Division Bench of this Court vide its judgment held that while confirming the order passed by the Tribunal has categorically held that for the purpose of pension and pensinary benefit relating to Job Contract employee only for the job contract period in regular establishment is to be counted towards qualifying service. The Page 3 of 6. judgment of this Court in Niranjan Biswal’s case was assailed by the State-Opp.Party before the Hon’ble Supreme Court by passing a special Leave Petition No.SLP(C) 28065 of 2019. The Hon’ble Supreme Court vide order dated 18.05.2022 while dismissing the State appeal has upheld the judgment of this Court in Niranjan Biswal’s case (supra). 7. Learned counsel for the Petitioner further referring to the facts of the present case submitted that the principle which has been laid down in Niranjan Biswal’s case and which has been eventually upheld by the Hon’ble Supreme Court be also applied to the case of the Petitioner as they were working as Anganwadi Worker and eventually they are working as Supervisor in ICDS Project. On such ground, learned counsel for the Petitioner submitted that the impugned rejection order, which has not considered the aforesaid legal position, is unsustainable in law and the same is required to be quashed. 8. Learned Additional Government Advocate on the other hand contended that the Opposite Party No.1 has not committed any illegality while passing the impugned order under Annexure-12. He further contended that the learned Orissa Administrative Tribunal vide order dated 20.11.2017 had directed to consider the representation of the Petitioner within a stipulated period of time. Accordingly the Opposites Party No.3 after considering the representation of the Petitioner has taken a decision vide order dated 15.04.2019 under Annexure-12 to the Writ Petition. Since the aforesaid legal issue with regard to the applicability of principle of law laid down in Niranjan Biswal’s case (supra) was never raised before the Tribunal. Therefore, there was no scope on the part of the Page 4 of 6. Opposite Parties to consider the said proposition of law and its applicability to the factual scenario of the present case. On such ground, learned Additional Government Advocate submitted that the present Writ Petition is devoid of merit. He further contended that the judgment in Niranjan Biswal’s case pertains to the village Level Worker (VLW & PEO). Therefore, the said principle cannot be applicable to the facts of the present case as the Petitioner in the present case was working as Anganwadi Worker and subsequently she was working as ICDS Supervisor. In such view of the matter, learned Additional Government Advocate submitted that the Writ Petition is devoid of merit. 9. Having heard learned counsel for the respective parties, on a careful examination of the respective contentions, as well as taking into consideration the documents as well as facts of the case, this Court is of the view that the Tribunal while disposing of the Original Application has directed to consider the representation of the Petitioner within a period of three months. On careful scrutiny of the record, it appears that the Opposite Party No.1 has considered the representation and passed a speaking order under Annexue-12. Therefore this Court is of the view that the Opposite Party No.1 has not committed any illegality while disposing of the representation passed in O.A.No.1786(C) of 2015. However in the event the Petitioner claims that she is covered by the principle laid down by the Hon’ble Supreme Court in Niranjan Biswal’s case, it is open to her to approach the Opposite Party No.1 for reconsideration of her case in the light of the principle laid down by this Court in Niranjan Biswal’s case and confirmed by the Hon’ble Supreme Court. In such view of the matter, this Court deems it proper to dispose of the Writ Page 5 of 6. Petition by granting liberty to the Petitioner by approaching Opposite Party No.1 by filing a detailed representation taking therein all the grounds along with copy of the judgment in Niranjan Biswal’s case within three weeks from today. In such view of the matter the Opposite Party no.1 shall do well to consider the case of the Petitioner in the light of the law laid down by the Hon’ble Supreme Court in Niranjan Biswal’s case within a period of three months from the date of filing of the representation by the Petitioner and dispose of the same in accordance with law by passing a speaking and reasoned order. Further it is clarified that while disposing of the representation of the Petitioner the Opposite Party No.1 shall not be influenced by the order under Annexure-12 to the Writ Petition. The final decision so taken be communicated to the Petitioner within a week from the date of taking such decision. 10. With the aforesaid observation the Writ Petition stands disposed of. Issue urgent certified copy of this order as per Rule. ( A.K. Mohapatra, ) Judge RKS Page 6 of 6. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 06-May-2024 12:45:01