State of Odisha Ors. ….. Smt. Namita Manjari Behera & Ors v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No.14826 of 2021 State of Odisha Ors. ….. Smt. Namita Manjari Behera & Ors. Vs. ….. Petitioner Mr. R.N. Mishra, AGA Opposite parties Mr. K.C. Sahoo, Advocate (O.P.1) Order No. 04 CORAM:
Legal Reasoning
ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 18.01.2024 This matter is taken up through hybrid mode. 2. Heard Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State-petitioners and Mr. K.C. Sahu, learned counsel appearing for opposite party no.1. 3. The petitioners have filed this appeal challenging the order dated 15th February, 2023 passed by the Orissa Administrative Tribunal in O.A. No.470 of 2015, by which the order impugned therein dated 13.01.2015 in respect of the applicant (opposite party no.1) has been set aside directing to treat opposite party no.1 under the GPF Scheme on the date of regularization. 4. Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State-petitioners contended that the matter should be heard extensively. 5. Mr. K.C. Sahu, learned counsel appearing for opposite party no.1 contended that the State of Odisha and its functionaries have filed this writ petition on 19.04.2021 challenging the order dated 20.07.2018 passed by the Odisha Administrative Tribunal Page 1 of 4 in O.A. No.470 of 2015 after a delay of more than two and half years. Therefore, the writ petition should be dismissed on the ground of delay and laches. It is further contended that similar matter had come up for consideration before 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 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. 6. Having heard learned counsel for the parties and in view of the materials available on record, it appears that opposite party no.1 was appointed as a Staff Nurse on contractual basis on 20.12.2004. While continuing as such, she was regularized vide order dated 07.05.2011 by appointing her along with others on regular basis w.e.f. 09.05.2011 and in the meantime, a notification was issued by the Finance Department of the Government of Page 2 of 4 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. Opposite party no.1 relied upon a clarification dated 04.04.2007 issued by the Government of Odisha on the basis of which GPF application of opposite party no.1 along with the detailed particulars were sent to the Principal Accountant General (A & E), Odisha, for allotment of GPF number in her favour. Accordingly, GPF No.55311 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 13.01.2015 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. 7. Challenging the aforesaid letter dated 13.01.2015, opposite party no.1 approached the learned Tribunal by filing O.A. No.470 of 2015. The Tribunal, vide impugned order dated 20.07.2018 allowed the said O.A. setting aside the order dated 13.01.2015 and directed to maintain the position of opposite party no.1 so far as it relates to continuance of the GPF scheme from the date of her regularization. 8. 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. Opposite party no.1 was appointed on contractual basis, but subsequently her services were regularized against such post by Page 3 of 4 an order on 07.05.2011 giving effect from 09.05.2011. 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 opposite party no.1 to enter into the GPF Scheme. While opposite party 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. More so, 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 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 opposite party no.1 in the present proceeding. 9. In the view of the matter, this Court does not find any merit in the writ petition. Accordingly, the same is dismissed. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 19-Jan-2024 11:16:14 (S.S. MISHRA) JUDGE Page 4 of 4