The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Ambika Mohanty ..... Petitioner WP(C) No.10732 of 2024 Represented By Adv. - Prafulla Kumar Mohapatra State Of Odisha and others ..... Opposite Parties -versus- Represented By Adv. – Mr. A.P. Das, ASC, Mr. S.K. Patra, Standing Counsel for A.G. Odisha CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 30.04.2024 This matter is taken up through Hybrid mode. Heard learned counsel for the Petitioner as well as learned Order No. 01. 1. 2.
Legal Reasoning
Annexure-6 approached this Court in filing OJC No.13552 of 1999 and this Court by order dated 01.05.2001 referring the judgment rendered in OJC No.1162 of 1999 (State of Orissa- vrs.-Jhuma Parida and others) and OJC No.11028 of 1999 (State of Orissa Vrs. Sudarsan Sahoo and others) confirmed the order passed by the learned Tribunal and dismissed the writ application. After dismissal of the writ application, the Government has brought the employee into regular establishment for the purpose of granting pensionary benefit. It is stated by learned counsel for the petitioner that similarly situated employees have been extended such benefits by virtue of the order passed by this Court and such order passed by this Court has been ultimately upheld by the Hon’ble Apex Court. 7. The Opposite Party No.2 has although not filed a counter affidavit denying all the allegations made by the Petitioner in the Petition. It is stated by the learned Additional Government Advocate in the counter that the claim of the Petitioner is a stale claim. Further it is stated in the counter affidavit that the cases cited by the Petitioner are Page 3 of 6. different from the grievance of the Petitioner and the principle decided in the said case are not all applicable to the case of the present Petitioner. It is submitted by the learned counsel appearing for the State that the Opposite Party No.2 has given due care and caution towards implementation of orders passed by this Court as well as the Apex Court and the guidelines and circulars issued by the State Government from time to time. 8. Heard learned counsel for both sides. Perused the materials available on record. Learned counsel for the Petitioner relies upon the judgment of this Court in the case of Abhaya Chanrana Mohanty vrs. State of Odisha, WPC(OAC) No.3494 of 2013 disposed of on 14th July, 2021. In the said case, the Petitioner, who was a work charged employee had claimed the pensionary benefits after his retirement with retrospective effect. This Court relying upon the order of the Hon’ble Supreme Court of India in Civil Appeal No.21498 of 2012 thereby dismissing the State Government’s Appeal and confirming the order dated 19th December 2011 of this Court passed in W.P(C) No.5377 of 2010 in the case of one Narusu Pradhan vis. State of Odisha allowed
Arguments
counsel for the State and Mr. S.K. Patra, learned Standing Counsel for Accountant General (A&E), Odisha. 3. The Petitioner has filed the above noted writ application with a prayer to direct the Opposite Parties to regularize him in service prior to his superannuation i.e. 30.04.2024 taking into consideration his long period of 33 years of service and verge of retirement 30.04.2024 and regularization of juniors vide order dated 06.02.2023 in view of Govt. circular dated 22.1.1965 and dated 06.03.1990 as has been given to similarly situated persons in the light of the principles decided in the case of State of Odisha vrs. Pitambar Sahoo, W.P.(C) No.24041/2017 Page 1 of 6. (decided on 20.12.2017), which has been affirmed in SLP(C) Diary No.30806/2018 and Chandra Nandi v. State of Odisha and others, W.P.(C) No.19550 of 2011 (decided on 03.02.2021), which has been affirmed in Special Leave to Appeal No.21180/2021 and Sarbeswar Bhujabal V. State of Orissa & others, O.A. No.606/2015, which has been affirmed in W.P.(C) No.7680/2019 and Special Leave to Appeal No.7541/2020 and Narusu Pradhan, O.A. No.1189(c) of 2006, which has been affirmed in W.P.(C) No.5377/2010 and Special Leave to Appeal (Civil) CC No. SLP No.22498/2012 and State of Orissa and others vrs. Jyostna Rani Patnaik as well as the beneifts given to similar persons vide Annexure-6; 4. The factual matrix, in brief, is that the Petitioner had initially joined as DLR basis on 01.08.1990. He continued in the said post continuously and thereafter, he was brought over to work charged establishment as Khalasi vide order dated 26.02.2011 and as yet he has not been considered for regular establishment and now he is at the verge of retirement from service on 30.04.2024. He retired from service on 30.06.2007. It is pertinent to mention here that other similar persons viz-Sri Pitambar Sahoo, Mate retired from service on 31.01.2012, Narusu Pradhan, Electrician, retired from service during 1998, retired from service on 30.09.2008 Pitambar Mohapatra, Chowkidar retired have been sanctioned pension on the basis of the service rendered as DLR under work charge establishment. Therefore, it is construed clear that the continuance of the Petitioner in NMR and work charged establishment have been considered from 01.08.1990 for all purposes including gratuity. 5. Learned counsel for the Petitioner submits that the Opposite Party No.2 should have kept in mind the Finance Department Resolution and the order of the Hon’ble Apex Court while rejecting the Page 2 of 6. representation of the Petitioner and also taken into consideration the length of service rendered by the Petitioner in the establishment being a work charged employee and continuous service. 6. It is also submitted by the learned counsel for the Petitioner that the learned Tribunal in O.A. No.70(B) of 1997 by order dated 03.05.1999 analyzing various points of law directed the State Government to regularize in a establishment post from the time he completed five years of continuous service in work charged establishment and the period of service rendered by him till the date of retirement be counted towards the pension and direction was issued to grant pensionary benefit to the employees. He further submits that the Government challenging the order of the learned Tribunal under
Decision
the writ petition and granted pensionary benefits as prayed for in that case. 9. Similarly, learned counsel for the Petitioner has also cited another order of a Division Bench of this Court in the case of Chandra Nandi vrs. State of Odisha and others: reported in 2014(I) OLR 734. In the said reported case, this Court had given a direction to notionally regularize service of the Petitioner prior to his superannuation from service and accordingly, calculated the Petitioner’s entitlement including the pensionary benefits. 10. So far the case of one Nansu Pradhan is concerned and which has been referred to by this Court in Abhaya Charan Mohanty (supra), Page 4 of 6. said Narusu Pradhan had filed O.A. No.1189(C) of 2006 praying for retiral benefits. Learned Tribunal allowed the retiral pensionary benefits in his favour vide order dated 11th June, 2009. The order dated 19th June, 2009 was challenged by the State Government before this Court in W.P.(C) No.5377 of 2010. This Court dismissed the writ petition on 19th December, 2021 and confirmed the order passed by the learned Tribunal. Therefore, the State Government preferred an appeal before the Hon’ble Supreme Court of India bearing Civil Appeal No.22498 of 2012. The said appeal was also dismissed on 7th January, 2013 by the Hon’ble Supreme Court of India thereby confirming the orders passed by the learned Odisha Administrative Tribunal as well as this Court. Since the case of Narusu Pradhan is a case of work charged employee, who had worked for more than five years in work charged establishment had been allowed to receive pensionary benefits by virtue of order passed by the learned Odisha Administrative Tribunal, which was ultimately confirmed by the Hon’ble Supreme Court of ultimately India, the principle laid down in that case has become a Law of the land as declared by the Hon’ble Supreme Court of India and is binding on this court while deciding cases of similar nature. Therefore, it is no more open to the State Government to take stand contrary to the principle finally approved by the Hon’ble Supreme Court of India. 11. The only benefit the petitioner is directs to get his pensionary benefits payable to the Petitioner i.e. required to be considered in the present writ petition. Since the benefits have been granted to other similarly placed work charged employees by notionally considering them as regular establishment employee and as such the pensionary benefits have been given to them, the same benefit needs to be extended to the Petitioner for services rendered by him under the State Government for several decades continuously that too on payment of a Page 5 of 6. paltry amount every month. The whole objective of the pension scheme is to support an employee and his family after retirement which is in recognition of his relentless service to the Govt. and such benefits are provided under the Rules on humanitarian considerations. 12. In view of the aforesaid facts and circumstances, this Court taking into consideration the grievance of the present petitioner, deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party Nos.1 & 4 to consider the case of the Petitioner for regularization of his service as expeditiously as possible, preferably within a period of two months, by taking into consideration the judgments referred to hereinabove. In the event it is found that the Petitioner is entitled to regularization in service, then necessary consequential action be taken by the Opposite Parties to regularize the Petitioner against any vacant sanctioned posts within a further period of six weeks. It is needless to mention here that in the event, of such regularization of the Petitioner, to all consequential financial and pensionary benefits, as is due and admissible be calculated and disbursed in favour of the Petitioner thereafter under the law to the Petitioner. Any final decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 13. With the aforesaid observation/direction, the writ petition is disposed of. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-May-2024 09:28:27 Page 6 of 6.