In the matter of an application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.13300 of 2020 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Iswar Chandra Pradhan … Petitioner - Versus - State of Odisha and others … Opposite parties For Petitioner … For Opposite Parties … M/s. B.S. Tripathy, M.K. Rath, J. Pati & D. Nayak. Mr. N.K. Praharaj, Additional Government Advocate (For O.P. No.1 & 2) Mr. S.K. Pattanaik, Senior Advocate (For O.P. No.3) -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing: 31.01.2024 : Date of judgment : 23.02.2024 A.K. Mohapatra, J. By filing the above noted writ petition, the Petitioner seeks quashing of the decision taken by the Opposite Parties vide order dated 22.10.2014 and 24.10.2014 // 2 // under Annexure-1 series to the writ petition as well as the order of retirement dated 09.09.2014 under Annexure-5 to the writ petition. A further prayer has also been made thereby seeking for a direction to the Opposite Party No.3 to treat the service period of the Petitioner upto 60 years and pay the arrear salary of these two years and pensionary benefits of the Petitioner be also paid by accepting that the Petitioner had continued in service till the age of 60 years with interest @ 7% per annum on all arrear financial benefits as would be due and admissible to the petitioner. 2. The factual matrix leading to filing of the present writ petition, in a nutshell, is that the Petitioner was initially appointed as a Junior Clerk against a Class-III post in OFDC Limited on 01.06.1982. The new service rule of the OFDC Limited came into force w.e.f. 21.10.1986. Thus, it has been asserted in the writ petition that since the Petitioner was appointed prior to the new service rule of the Corporation came into force, he would be governed under the relevant // 3 // service rule of the Government of Odisha. It has also been stated in the writ petition that while the Petitioner was working as L.D. Assistant in the office of the Divisional Manager of OFDC Limited, Jharsuguda, on 28.06.2014, a decision was taken by the Finance Department, Government of Odisha vide their resolution dated 28.06.2014 with regard to enhancement of age of superannuation in respect of the Government employees from 58 years to 60 years. 3. Pursuant to the decision taken by the Finance Department, Government of Odisha for enhancement of retirement age under Annexure-2, the Public Enterprises Department of the Government of Odisha vide their resolution dated 02.08.2014 directed the State Public Sector Undertakings to take a decision with regard to enhancement of age of superannuation in respect of the employees working under them subject to fulfillment of certain terms and conditions mentioned in the resolution dated 02.08.2014. While this was the position, the Petitioner was served with a // 4 // notice dated 09.09.2014 thereunder giving him the intimation of his proposed date of retirement, i.e. w.e.f. 30.09.2014. It has also been stated that the Petitioner would attain the age of 58 years w.e.f. 30.09.2014. Therefore, it has been alleged that despite resolution dated 02.08.2014, the Petitioner was not given the benefit of enhanced retirement age. Being
Legal Reasoning
aggrieved by such notice of retirement dated 09.09.2014, the Petitioner submitted a representation before the Opposite Party No.3 on 10.09.2014 with a specific request to revoke notice dated 09.09.2014 and to allow him to continue till he attains the age of 60 years as has been decided by the Government of Odisha in respect of Government employees. 4. Since no decision was taken on the representation of the Petitioner dated 10.09.2014, the Petitioner approached this Court by filing a writ petition bearing W.P.(C) No.18225 of 2014 with a prayer for a direction to the Opposite Parties to allow him to retire at the age of 60 years instead of 58 years. A coordinate Bench of this Court vide order dated 26.09.2014 // 5 // was pleased to dispose of the said writ petition with the following observations:- “If the Board takes a decision in the light of the State Government resolution increasing the age of superannuation of its employees from 58 years to 60 years, the petitioner shall be brought back to his position within a period of seven days from the date of concurrence from the Finance Department.” 5. While the matter stood thus, the Board of Directors of OFDC Limited took a decision on 30.09.2014 to enhance the retirement age of the Corporation employees from 58 years to 60 years and, accordingly, a proposal was sent to the Government for approval. While the proposal was pending before the Government, the Petitioner had retired from service on attaining the age of superannuation on 30.09.2014. The proposal/resolution of the OFDC Limited dated 30.09.2014 which was sent to the Government for approval of such decision to enhance the age of retirement from 58 to 60 years was, in fact, approved by the Government on 24.10.2014. Since the Petitioner had retired from service on // 6 // 30.09.2014, i.e. prior to the resolution/proposal of the OFDC Limited was approved by the Government of Odisha, the Petitioner did not get advantage of such a decision of the Board of Directors of the Corporation and, as such, he was made to retire from service on attaining the age of 58 years w.e.f. 30.09.2014.
Legal Reasoning
6. Mr. B.S. Tripathy, learned counsel appearing for the Petitioner, at the outset, submitted that the Board of Directors of the OFDC Limited had taken the decision to enhance the age of retirement from 58 years to 60 years on 30.09.2014 at 11.00 A.M. He further contended that the OFDC Limited instead of allowing the Petitioner to continue in service after 30.09.2014 pursuant to their decision on the very same day, the Petitioner was allowed to retire from service at 5.00 P.M. on the very same day on attaining the age of 58 years. He further contended that although the decision of the Board dated 30.09.2014 was subsequently approved by the Government on 24.10.2014, the Petitioner was not taken back // 7 // to his position despite specific direction of this Court vide order dated 26.09.2014 passed in the earlier writ petition bearing W.P.(C) No.18225 of 2014. 7. Mr. Tripathy further contended that due to the delay in taking decision by the OFDC Limited and the subsequent delay by the Government in giving its concurrence to the resolution of the OFDC Limited, many employees of the Corporation, who are entitled to the benefits of the decision of the Board dated 30.09.2014, were deprived of such benefit illegally and they have been made to retire pre-maturely on attaining the age of 58 years during the month of August and September, 2014. It was also contended that the Government employees, who are working directly under the Government and the employees, who are working under the Government owned public sector undertaking, are entitled to similar treatment and, as such, both these categories of employees are covered by the resolution of the Finance Department dated 28.06.2014. Although the Public Enterprises Department // 8 // issued another resolution dated 02.08.2014 and thereunder imposed certain conditions to be fulfilled by the Corporations before applying the policy decision of the Government dated 28.06.2014 to the Corporation employees. It is only on fulfillment of such conditions in Resolution dated 02.08.2014, that the Corporation will be eligible to extend the benefit of enhancement in the retirement age to its employees. However, since there was a delay on the part of the Board initially and thereafter on the part of the State Government in granting concurrence to the resolution of the Board in spite of the fact that the corporation complies with all such conditions, the Petitioner is illegally deprived of the benefits which has accrued in his favour by virtue of the resolutions dated 28.06.2014 and 02.08.2014. 8. In the aforesaid context, learned counsel for the Petitioner also contended that the policy decision taken by the Finance Department on 28.06.2014 was adopted by the Public Enterprises Department under whose administrative control // 9 // the Opposite Party-Corporation is functioning. However, the acceptance of resolution dated 28.06.2014 by the Public Enterprises Department was conditional. He further contended that it is not disputed by any of the parties that the Opposite Party-Corporation does not fulfill the six conditions that has been imposed by the Public Enterprises Department. Therefore, the resolution dated 02.08.2014 of the P.E. Dept. thereby accepting the policy decision of the Government of Odisha dated 28.06.2014 should have been made applicable to the employees of the Corporation w.e.f. 02.08.2014 itself as the Corporation was fulfilling all the conditions imposed by the Public Enterprises Department as on the date of such Resolution. 9. Moreover, the delay on the part of the OFDC Limited in taking a decision and the subsequent delay on the part of the Government to grant concurrence solely attributable to them without any fault of the petitioner, the Petitioner and similarly situated many other persons, who have retired in the month of // 10 // August and September i.e. from 02.08.2014 to 24.10.2014, could not have been deprived of the benefit of enhanced retirement age from 58 years to 60 years. In the aforesaid context, learned counsel for the Petitioner referred to the case of OHPC Limited. In the case of OHPC Limited, the Corporation allowed its employees to continue in service awaiting approval of the State Government. He further submitted that the OHPC Limited employees, who were due to retire on 30.06.2014, 31.07.2014 and 31.08.2014, they were allowed to continue upto 30.09.2014 awaiting approval of the State Government to the proposal submitted by the Board of OHPC Limited for enhancement of retirement age from 58 years to 60 years. However, such a practice was not followed so far as the employees of the OFDC Limited are concerned. As such, it was argued that two different Corporations working under the same department of the Government of Odisha have adopted two different standards in respect of their employees thereby causing serious // 11 // discrimination to the Petitioner and similarly situated employees. It was also alleged that similar decision was taken by O.M.C. Limited and O.C.H.C. Limited. 10. In course of his argument, learned counsel for the Petitioner further contended that some of the OFDC Limited employees, who were completing 58 years of service on 06.10.2014, on 04.10.2014 and on 05.10.2014 were given the benefit of the decision dated 24.10.2014 and they were allowed to continue upto 60 years of age in service. Learned counsel for the Petitioner further referred to the decision of this Court in Sri Biresh Chandra Giri v. State of Odisha & another (W.P.(C) No.17444 of 2015 decided on 28.01.2020) wherein it has been specifically held that the decision of the Board shall be given effect to from the date of the Board resolution. 11. Similar view has already been taken by a Bench of this Court in the case of Premalata Panda v. State of Odisha & another, reported in 2015(II) OLR 214 and in Ardhendu // 12 // Sekhar Rath & Ors. v. State of Odisha and Ors, reported in 2019 (II) OLR 418. A coordinate Bench of this Court, in the above referred matters, has specifically held that the constitutional principle of equality is inherent in rule of law and that the rule of law is satisfied when laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction. Further, it has been held that the concept of equality allows differential treatment but it prevents distinctions that are not properly justified. While coming to such a conclusion the learned coordinate Bench has also referred to the judgments in M. Nagraj v. Union of India, reported in (2006) 8 SCC 212; Ashutosh Gupta v. State of Raasthan, reported in (2002) 4 SCC 34; Gauri Shankar v. Union of India, reported in (1994) 6 SCC 349; State of Karnatak v. B. Suvarva Malini, reported in (2001) 1 SCC 728 and K.R. Laxman v. Karnataka Electricity Board, reported in (2001) 1 SCC 442. // 13 // 12. Learned counsel for the Petitioner also relied upon the judgment in Odisha Tourism Development Corporation Ltd. and Ors. Vs. Surendra Kumar Mallick and Ors., (W.A. No.379 of 2017, decided on 11.09.2019), reported in 2019 (III) ILR-CUT 32. By referring to the aforesaid judgment, learned counsel for the Petitioner submitted that a Division Bench of this Court did not accept the contention of the OTDC Ltd. that enhanced age of retirement would be applicable from the date of approval granted by the Government and not from the date of resolution of the Government. Accordingly, the Hon’ble Division Bench dismissed the writ appeal by upholding the judgment of Hon’ble Single Judge wherein a direction was given to the Corporation to extend the benefit of enhanced retirement age to the Petitioners. In the said case although the Petitioners had retired from service by the time the proposal was approved by the Government and despite such developments the petitioner was extended with such benefits. Similarly, learned counsel // 14 // for the Petitioner also relied upon the judgment of the Hon’ble Supreme Court in the State of Uttar Pradesh v. Dayanand Chakrawarty & Ors. (Civil Appeal No.5527 of 2012, decided on 13.02.2019). He also referred to the judgment of the Hon’ble Supreme Court in Harwindra Kumar vs. Chief Engineer, Karmik and others, reported in 2005 (13) SCC 300. 13. Per contra, OFDC Limited, Opposite Party No.3 filed only a written note & date chart thereby opposing the prayer made in the writ petition, however, they have filed a written note. Mr. S.K. Pattanaik, learned Senior Counsel appearing on behalf of Opposite Party No.3-Corportion, at the outset, submitted that the OFDC Limited has framed OFC Service Rules, 1986 for its employees with approval under Section 9- A of the Industrial Dispute Act, 1947. Rule-42 of the aforesaid Rules provides that the age of retirement of all employees shall be 58 years and, so far Class-IV employees are concerned, their retirement age shall be 60 years. He // 15 // further contended that the Petitioner was initially engaged on daily wage basis w.e.f. 01.08.1982. Subsequently, he was regularized as L.D. Assistant w.e.f. 06.01.1991. The date of regularization of Petitioner’s service was antedated to 30.09.1990. Therefore, it was contended that since the Petitioner was attaining the age of 58 years on 30.09.2014, he was given advanced notice on 21.04.2014 intimating him his date of retirement in advance. With regard to the Resolution dated 28.06.2014, learned Senior Counsel appearing for the Opposite Party No.3 contended that the same is meant for Government employees whose services are governed under Odisha Service Code. By amending the Rule-71 of Odisha Service Code, the retirement age of such Government servants has been enhanced from 58 years to 60 years. Therefore, the Corporation employees are not covered by 28.06.2014 resolution. 14. It was also argued by learned Senior Counsel appearing for the Opposite Party No.3 that Public Enterprises // 16 // Department, Government of Odisha vide Resolution dated 02.08.2014 enhanced the retirement age from 58 years to 60 years for the employees working under the State Public Sector Undertakings, however, such enhancement of retirement age is subject to fulfillment of six pre-conditions provided in the resolution dated 02.08.2014. He further contended that the resolution dated 02.08.2014 itself does not confer any right on the Petitioner for claiming enhancement of retirement age. Such resolution dated 02.08.2014 prescribes the mode, manner and mechanism to be adopted by different Corporation before taking a decision through its Board of Directors to enhance the retirement age from 58 years to 60 years. Such decision taken by the Board of Directors was also required to be approved by the State Government before the same is given effect to. Therefore, it was contended that since the Petitioner had retired from service before the proposal was accepted by the Government, // 17 // the Petitioner has not been extended with the benefits of enhancement retirement age. 15. In reply to the order passed by the coordinate Bench of this Court in W.P.(C) No.18225 of 2014, learned Senior Counsel appearing for the Opposite Party No.3 submitted that pursuant to the direction of this Court, the matter was promptly placed before the Board of Directors of the OFDC Limited. He further contended that the Board of Directors without any further delay took a decision by passing a resolution to enhance the retirement age from 58 years to 60 years. Since the resolution of the Board of Directors was to be concurred by the administrative department and the same was required to be approved by the Government prospectively as per the resolution of the Public Enterprises Department dated 02.08.2014, the resolution of the Board of Directors dated 30.09.2014 was given effect to prospectively w.e.f. 24.10.2014, i.e. the date on which the Government accepted the resolution of the Opposite Party No.3. Since the Petitioner // 18 // had retired by then, such benefit could not have been extended to the Petitioner by the Opposite Party No.3. 16. In course of his argument, learned Senior Counsel appearing for the Opposite Party No.3 referred to the case of one Sarat Chandra Tripathy v. Odisha Forest Development Corporation & others (W.P.(C) No.1636 of 2015, decided on 05.05.2015). It was contended that the above named Sarat Chandra Tripathy stands in an identical footing with the present Petitioner as he was working in the OFDC Limited and attained the age of superannuation on 30.09.2014. To justify that the above named Sarat Chandra Tripathy stands in an identical footing with the petitioner, he also referred to the date of retirement of both the present Petitioner as well as the above named Sarat Chandra Tripathy is 30.09.2014 and submitted that both of them were working under the Opposite Party No.3-OFDC Limited. Therefore, there is no difference between both of them. // 19 // 17. The above named Sarat Chandra Tripathy challenging his superannuation w.e.f. 30.09.2014 and for a direction to allow him to continue in service till completion of 60 years pursuant to resolution dated 02.08.2014 had earlier approached this Court by filing W.P.(C) No.1636 of 2015. A coordinate Bench of this Court vide its judgment dated 05.05.2015 in W.P.(C) No.1636 of 2015 dismissed the writ application by a detailed judgment. Learned coordinate Bench has categorically held that the decision of the Board of Directors of Opposite Party No.3 could not have been given effect to retrospectively and that such decision of enhancement of age of superannuation is to be extended to the employees of OFDC prospectively pursuant to the approval of the State Government in Forest and Environment Department. 18. With regard to the order passed earlier by a coordinate bench vide order dated 29.09.2014 in the earlier writ petition bearing W.P.(C) No.18141 of 2014, it was contended that the learned coordinate Bench has held that such an order has been // 20 // passed ex parte without hearing the Opposite Parties. In the said context, the Bench had referred to the judgment in Sukanta Chandra Mohanty v. State of Orissa and others (W.P.(C) No.14957 of 2014 disposed of on 31.03.2015) and Raghunath Das v. State (W.P.(C) No.20381 of 2014
Decision
disposed of on 12.11.2014). By referring to the aforesaid two judgments, the learned coordinate Bench had held that in view of the definite and clear finding to the effect that the order of approval by the competent authority having been passed after superannuation of the Petitioner, the said approval can only be applied prospectively, but not retrospectively. This Court on a careful analysis of the judgment in Sarat Chandra Tripathy’s case (supra) is of the considered view that the facts involved in the said case are almost identical to the facts of the Petitioner’s case 19. Learned Senior Counsel appearing for the Opposite Party No.3 also referred to the case of Odisha State Road Transport Corporation Ltd. and contended that under similar // 21 // circumstances the age of retirement of the employees of OSRTC Limited was enhanced to 60 years prospectively w.e.f. 30.07.2015. He also contended that the coordinate Bench of this Court in Amulya Kumar Tripathy v. State of Odisha and Ors. in W.P.(C) No.17763 of 2014 dismissed the writ application by referring to the judgment of Sarat Chandra Tripathy’s case (supra) vide order dated 25.08.2015. It was also argued that the present writ petition has been filed almost six years after the date of retirement of the Petitioner from service w.e.f. 30.09.2014. As such, it was urged that at this belated stage this Court in exercise of the powers under Article 226 of the Constitution of India should not entertain the writ petition filed by the present Petitioner as the same would amount to travesty of justice. 20. Similarly, while replying to the judgment in Biresh Chandra Giri’s case (supra), relied upon by the learned counsel for the Petitioner, learned Senior Counsel appearing for the Opposite Party No.3 contended that the above named // 22 // Biresh Chandra Giri was an employee of Odisha State Police Housing and Welfare Corporation Ltd. He further submitted that for employees of Odisha State Police Housing and Welfare Corporation Ltd. there was no statutory rule like the OHPC Limited. Therefore, the law laid down in Biresh Chandra Giri’s case (supra) is not applicable to the facts of the present case. Accordingly, the judgment in Biresh Chandra Giri’s case (supra) was distinguished by the learned Senior Counsel appearing for the Opposite Party No.3. Similarly, the judgment in Premlata Panda v. State of Odisha & another, reported in 2015 (II) OLR 214 was also distinguished by submitting that the above named Premlata Panda was an employee of Cuttack Development Authority. It was also contended that the employees of the Cuttack Development Authority are directly governed under Rule-71 of Odisha Service Code which was amended directly by the Resolution dated 28.06.2014. Therefore, the law laid down in Premlata Panda’s case (supra) would not be applicable to the // 23 // facts of the present case. Similarly, the same also stands distinguished. 21. Having heard Mr. B.S. Tripathy, learned counsel for the Petitioner, Mr. S.K. Pattanaik, learned Senior Counsel appearing for the Opposite Party No.3 and learned Additional Government Advocate appearing for the State-Opposite Parties and upon a careful examination of the pleadings of the respective parties as well as the documents annexed thereto, this Court found that there is no dispute with regard to factual aspects of the case. The only question that falls for determination in the present writ petition is with regard to the retrospective application of the decision of the Board of Directors of Opposite Party No.3, which was approved by the Government of Odisha on 22.10.2014, to the case of the Petitioner, who had retired from service by the time such approval was granted and communicated to the Opposite Party No.3. // 24 // 22. In other words, if this Court holds that the decision of Board of Directors taken on 30.09.2014 is to be given effect to from the date such decision was taken by the Board, then the Petitioner will be entitled to the benefit of enhancement in the retirement age from 58 years to 60 years. On the other hand, if this Court holds that the decision of the Board dated 30.09.2014 shall come into effect from the date of its approval by the Government on 22.10.2024 and that the same would have a prospective application, then the Petitioner would not be entitled to the benefit of enhancement of retirement age. Thus, the question that is required to be decided in the present writ petition is with regard to the fact as to whether the Petitioner would be covered by the resolution dated 28.06.2014 or the resolution dated 02.08.2014. Further, in the event it is found that the Petitioner being a Corporation employee would be covered by the resolution dated 02.08.2014, then what would be the date // 25 // of application of such resolution to the employees of the O.F.D. Corporation Ltd. 23. Indisputably, the Petitioner is an employee of the OFDC Limited, Opposite Party No.3. Further, he was appointed under the service rules of the Corporation of the year 1986. In view of the Rule-42 of the Service Rules, 1986, the Petitioner was to retire from service on attaining the age of superannuation on completion of 58 years w.e.f. 30.09.2014. It is also not disputed that the Petitioner was given an advanced notice intimating him his date of retirement on 30.09.2014. The intervention of two resolutions, one of the Finance Department on 28.06.2014 and the other one by the Public Enterprises Department on 02.08.2014, had created the confusion which has eventually led to filing of the present writ petition. 24. In Sarat Chandra Tripathy’s case (supra), a coordinate Bench of this Court was examining the very same issue. Moreover, the very same Corporation was involved in the // 26 // above noted writ petition and the date of retirement of above named Sarat Chandra Tripathy and the present Petitioner is identical i.e. 30.09.2014. A coordinate Bench while deciding the case of the above named Sarat Chandra Tripathy has categorically come to a conclusion that the decision of the Board dated 30.09.2014 having been approved by the Government on 22.10.2014, the same will be applicable prospectively, i.e. from the date of approval by the Government. At this juncture, this Court would like to observe that the judicial discipline and decorum demands that the coordinate Benches must show respect to the decision earlier rendered by a coordinate Bench of equal strength on self-same issues. Otherwise there will be a judicious chaos/anarchy. Several judgments of the Hon’ble Supreme Court have highlighted the aforesaid principle of law and the same has been reiterated time and again. Therefore, this Court is not required to go in detail to the aforesaid well settled proposition of law which has almost attained finality. // 27 // 25. In view of the aforesaid factual analysis as well as keeping in view the proposition of law as has been discussed hereinabove, this Court on a careful examination of the factual background of the present case, has no hesitation to come to a conclusion that the present Petitioner stands in an identical footing with Sarat Chandra Tripathy. The case of Sarat Chandra Tripathy has been adjudicated finally by a coordinate Bench. Resultantly, the writ petition filed by the said Sarat Chandra Tripathy has been dismissed by categorically holding that the approval order of the State Government dated 22.10.2014 cannot be given retrospective effect i.e. from the date of the decision taken by the Board on 30.09.2014. In such view of the matter, this Court has no other alternative but to accept the aforesaid ratio laid down by the coordinate Bench in Sarat Chandra Tripathy’s case (supra). Therefore, by applying the ratio decided by the coordinate Bench in Sarat Chandra Tripathy’s case (supra), this Court holds that the present writ petition is devoid of // 28 // merit and, accordingly, the same is liable to be dismissed and the same is hereby dismissed. 26. In the result, the writ petition being devoid of merit, hereby stands dismissed. However, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 23rd February, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 23-Feb-2024 18:59:08