The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9593 of 2024 Bijaya Kumar Acharya ..... Petitioner Represented By Adv. - Prafulla Kumar Mohapatra -versus- ..... Opposite Parties Represented By Adv. – D.Mohapatra, ASC Mr.S.K.Patra, Standing Counsel for A.G., Odisha 1) State Of Odisha 2) Engr In Chief, Rural Work, Bbsr 3) Chief Construction Engr, Rural Works Circle, Balasore 4) Supdt. Engr, Rural Works Circle, Balasore 5) Secy To Govt. Of Odisha, Finance Dept., Bbsr 6) Accountant General(a And E) , Bbsr CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 30.04.2024 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 and Mr. S.K.Patra, learned Standing Counsel for AG, Odisha. 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; Page 1 of 6. the vide under impugned dated order 13.08.2021 Admit and allow the writ petition and; Quash i) ii) No.28360100872020/RD, Annexure-4 and; iii) Direct the Opposite Parties to regularize the service of petitioner under regular establishment retrospectively prior to his retirement and to grant the Petitioner pension and other retirement dues under Old OCS (Pension) Rules, 1992 by counting so much of past service rendered in work charged along DLR period as has been granted to other similarly situated persons viz- Radheshyam Mohanta, Pitambar Mohapatra, Sarbeswar Bhujabal, Pitambar Sahu, Chandra Nandi and Narusu Pradhan at par with J.C. employees under Revenue Department and covered by the decision in Finance (255) F dated Department Resolution No.17114 04.04.2007 within a stipulated period of time and; iv) within a stipulated period of time. v) deem fit and proper in the bonafide interest of justice.” Pass such other order(s)/direction(s) as would be Further direct to disburse the arrears of pension 4. Learned counsel for the Petitioner submitted that the present Petitioner was initially engaged as on DLR basis on 01.11.1992. While working as such, the present Petitioner was brought over to the work charged establishment of Rural Works Electrical Division to the post of Jr. Clerk vide Office Order dated 11.02.2011 of the Executive Engineer, Rural Works Electrical Division, Bhubaneswar. Thereafter, the Petitioner has retired from service w.e.f. 31.08.2020 on attaining the age of superannuation. Now he Petitioner has approached this Court challenging the order dated 13.08.2021 under Annexure-4 whereby his claim for grant of pension has been rejected by the Opposite Parties. Page 2 of 6. 5. Learned counsel for the Petitioner further contended that earlier the Petitioner had approached this Court by filing W.P.(C) No.19233 of 2020. This Court disposed of the said writ petition vide order dated 18.08.2020 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 with the Petitioner, after passing of the order by the Tribunal, he has been extended the pensionary benefits under Annexure-6 series of the writ petition. So far the present Petitioner is concerned, his representation was considered pursuant to the order dated 18.08.2020 passed by this Court in W.P.(C) No.19233 of 2020, however the same has been rejected vide order dated 13.08.2021 under Annexure-4 to the writ petition by the Opposite Party No.1 holding that the Petitioner was not a regular employee. Therefore, he is not entitled to the pensionary benefits. 6. Learned Additional Standing Counsel, on the other hand, supported the impugned rejection order dated 13.08.2021 under Annexure-4 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 18.08.2020 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 Page 3 of 6. 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 a Work Charged employee, his service was governed under the Orissa Work Charged Employees (Appointment and Conditions of Service) Instruction, 1974. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is covered by the aforesaid instruction of the year 1974. 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 Page 4 of 6. 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 Narsingh Choudhury. 8. In view of the aforesaid legal position, this Court has no hesitation in setting aside the impugned order vide No.28360100872020/RD dated 13.08.2021 under Annexure-4 to the writ petition. Accordingly, the same is hereby set aside. Further the matter is remanded back to the Opposite Party No.1 to consider the case of regularisation of service of the Petitioner in regular establishment 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 DLR and work charged service 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 Page 5 of 6. this order by the Petitioner. 9. With the aforesaid observation and direction, the writ petition is disposed of. Anil ( A.K. Mohapatra) Judge Signature Not Verified Page 6 of 6. Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 01-May-2024 10:22:04