The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.11819 of 2024 Mahendra Patra ..... Petitioner Represented By Adv. - Prafulla Kumar Mohapatra -versus- 1) State Of Odisha 2) Engineer-in-chief (civil) , Odisha 3) Chief Construction Engineer, Eastern (r And B) Circle 4) Superintending Engineer, Balasore (r And B) Division ..... Opposite Parties Represented By Adv. – D.Mohapatra, A.S.C. Mr.S.K.Patra, Standing Counsel for AG, Odisha
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. 01. 1. 2.
Decision
ORDER 16.05.2024 This matter is taken up through Hybrid mode. 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 A.G., 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 therefore, humbly prayed that this Hon'ble Court the impugned order vide No.1906 dated may graciously be pleased to:- i) Admit and allow this writ petition and; ii) Quash 11.02.2021 under Annexure-4and: iii) Direct the opp. parties to include him under GPF scheme and allow pension and pensionary benefits under the Orissa Civil Services (Pension) Rules, 1992 by counting so much of past service rendered in work charged establishment taking in to account his initial appointment 01.01.1985 under the Govt. as has been granted to other similarly placed Page 1 of 5. employees in the light of the principles decided in Narusu Pradhan vrs. State in Ο.Α.No. 1189(c)/2006, which has been affirmed by in W.P.(c) No. 5377/2010 and SLP(c) cc No. 22498/2012, Sarbeswar Bhujabal, (Ο.Α.Νο. 606/2015), which has been affirmed vide order dt. 15.11.2019 in W.P.(c) No. 7680/2019, and Hon’ble Supreme court in SLP(c) No.7541 of 2020, decided on 31.10.2022 and State of Odisha vrs. Pitambar Sahoo, W.P.(c) No. 24041/2017(decided on 20.12.2017), which has been affirmed in SLPO Diary No. 30806/2018 within a stipulated period of time and; iv) Further direct to disburse the arrears of pension within a stipulated period of time. v) Pass such other order (s)/direction(s) as would be deem fit & proper in the bonafide interest of justice;” Learned counsel for the Petitioner submitted that the present 4. Petitioner was initially engaged as DLR on 01.01.1985. While working as such, the present Petitioner was brought over to Work Charged regular establishment on 18.01.2011 vide order No.589 dated 18.01.2011. then brought over to regular establishment to the post of Peon vide Office Order No.4232 dated 28.02.2009 of the Executive Engineer, Balasore (R & B) Division, Balasore. Now the Petitioner has approached this Court challenging the order dated 11.02.2021 under Annexure-4 whereby his claim to include him under GPF and allow pension has been rejected by the Opposite Parties. 5. Learned counsel for the Petitioner further contended that earlier the Petitioner had approached this Court by filing W.P.(C) No.28568 of 2020. This Court disposed of the said writ petition vide order dated 10.12.2020 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 Page 2 of 5. concerned, his representation was considered pursuant to the order dated 10.12.2020 passed by this Court in W.P.(C) No.28568 of 2020, however the same has been rejected vide order dated 11.02.2021 under Annexure-4 to the writ petition by the Opposite Party No.1 holding that the Petitioner was regularized after 01.01.2005. Therefore, he is not entitled to be included under GPF and old pension scheme. 6. Learned Additional Standing Counsel, on the other hand, supported the impugned rejection order dated 11.02.2021 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 10.12.2020 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 rejected by the authorities by holding that the Petitioner is not entitled to get similar benefits as has been granted to Sarbeswar Bhujabal and Chandra Nandi. The impugned rejection order further reveals that since the Petitioner was a regular Peon, his service was governed under the Orissa Pension (Amended) Rules, 2005 and not as per OCS (Pension) Rules, 1992. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is covered by the aforesaid New Pension Rules. 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 Page 3 of 5. 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 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 retired from service after 01.01.2005 and they have been granted pension under Old Rules. The Petitioner is squarely covered in Finance Department Resolution No.17114 (255)/F. dated 04.04.2007. Therefore, the remedy of the Petitioner is to work out in the light of the said circular. 8. In view of the aforesaid legal position, this Court has no hesitation in setting aside the impugned order vide No.1906 dated 11.02.2021 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 examine the case in terms of the Finance Department Resolution No.17114(255)/F. dated 04.04.2017 as well as the decision in Pitambar Mohapatra, W.P.(C) No.13483/2012 & Sarbeswar Bhujabal, O.A.No.606/2015 include him under GPF Scheme and allow 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 work charged and regular period of the Petitioner. Accordingly, minimum pensionary benefits be decided by including him under GPF Page 4 of 5. Scheme. 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 included under GPF Scheme for grant of minimum pension within a period of two months from the date of communication of a certified copy of this order by the Petitioner. 9. With the aforesaid observation and direction, the writ petition is disposed of. Rubi ( A.K. Mohapatra ) Judge Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 11:58:12