In the matter of the application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12265 of 2024 In the matter of the application under Articles 226 and 227 of the Constitution of India. Baishnab Charan Das … Petitioner - Versus - State of Odisha and others … Opposite Parties Advocate(s) appeared in this case:- --------------------------------------------------------------------------------------- For Petitioner … Mr. Bikram Keshari Raj For Opposite Parties … Smt. Siva Mohanty, Additional Standing Counsel. --------------------------------------------------------------------------------------- PRESENT: THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing - 20.03.2025 : Date of judgment - 02.04.2025 Aditya Kumar Mohapatra, J. The present writ petition has been filed by the Petitioner with a prayer to quash the order dated 17.03.2023 passed by the Opposite Party No.4-Settlement Officer, Cuttack under Annexure-7 to the writ petition. He has further prayed for a direction to the Opposite Parties to take into consideration the service of the Petitioner rendered in the job Page 1 of 12. contract establishment from 18.12.1964 to 06.11.1989 while calculating his final pension and pensionary benefits by adding the aforesaid period to the period of his regular service and, accordingly, the pension and pensionary benefits be recalculated and released in favour of the Petitioner with interest @ 18% for the delay in making such payment. 2. The factual backdrop of the Petitioner’s case leading to filing of the present writ petition, in short, is that the Petitioner was initially appointed on 06.12.1964 in the office of the Assistant Settlement Officer, Cuttack as an Amin Grade-III on a temporary basis to assist in major settlement work that was being carried out in the Cuttack District. Initially the appointment of the Petitioner was in the job contract establishment. While continuing in service in job contract establishment, the service of the Petitioner was regularized w.e.f. 04.11.1989 vide order under Annexure-2 to the writ petition passed by the Opposite Party No.4. After regularization of his service w.e.f. 04.11.1989, the Petitioner continued to discharge his service along with similarly situated many other employees, who were initially engaged in the job contract establishment. Finally, on attaining the age of Page 2 of 12. superannuation w.e.f. 28.02.2002, the Petitioner had retired from service. 3.
Legal Reasoning
Petitioner pursuant to the order passed by this Court in the earlier writ petition disposed of the representation of the Petitioner by rejecting the claim of the Petitioner. Being aggrieved by such rejection vide order dated 17.03.2023 under Annexure-7, the Petitioner has once again approached this Court with a prayer as has been indicated hereinabove. 5. Learned counsel for the State, on the other hand, referred to the counter affidavit filed on behalf of the Opposite Parties No.1 and 4. At the outset, learned counsel for the State contended that the claim of the Petitioner has been duly considered by the Opposite Party No.4 pursuant to order passed by this Court in the earlier writ petition. After due consideration of the claim as indicated in the representation of the Petitioner, the Opposite Party No.4 found that the same is not legally tenable. Accordingly, vide order dated 17.03.2023 under Annexure-7 the Page 4 of 12. prayer of the Petitioner and his representation has been rejected. He further contended that by passing order dated 17.03.2023, the Opposite Party No.4 has not committed any illegality. 6. Further, referring to the counter affidavit filed by the State- Opposite Parties, learned counsel for the State contended that the Petitioner had initially joined in service as a job contract employee w.e.f. 18.12.1964 and continued as such till 04.11.1989. Thereafter, the Petitioner was appointed in the regular establishment vide Office Order No.13677 dated 04.11.1989 and finally, the Petitioner has retired from service w.e.f. 28.02.2002. She further emphatically submitted that the Petitioner has been sanctioned and disbursed with the provisional pension from 01.03.2002 and subsequently he has also been sanctioned and disbursed with the final pension amount by the office of the Accountant General, Odisha by taking into the consideration the period of regular service of the Petitioner for 12 years 3 months and 22 days. 7. Learned counsel for the State further referring to paragraph-8 of the counter affidavit, contended before this Court Page 5 of 12. that pursuant to the letter No.31252/R&DM of the Revenue and Disaster Management Department, the Director, Land Records & Surveys, Board of Revenue, Odisha, Cuttack have been asked to dispose of all pending cases relating to sanction of full pension by rejecting such cases with intimation to the concerned department citing the order dated 12.08.2016 passed by the learned O.A.T. in Sri Priya Bhusan Jena Vrs. State of Odisha & Others (O.A. No.38 of 2009). Further, a justification has been given in the counter affidavit to the effect that since the Petitioner has worked for more than 10 years in the regular establishment, there is no necessity to take into consideration the service rendered in the job contract establishment by the Petitioner for counting the minimum qualifying service. As such, the contention of the learned counsel for the Petitioner to take into consideration the entire service period, including the job contract period, is devoid of merit. Accordingly, the entire writ petition is liable to be dismissed. 8. Heard the learned counsel for the Petitioner as well as the learned counsel for the State. Perused the pleadings of the Page 6 of 12. respective parties as well as the documents annexed to the pleadings and placed before this Court in course of hearing. 9. On a careful analysis of the factual background of the present case by taking into consideration the pleadings of the respective parties as well as the submissions made by the learned counsels appearing for both sides, this Court observes that the issue that is involved in the present writ petition, which requires determination, is as to whether the service rendered by the Petitioner in the job contract establishment, i.e. from the date of his initial appointment on 18.12.1964 to 06.11.1989 is to be taken into consideration and added to the service period rendered in the regular establishment till his retirement on 28.02.2002 while calculating his pensionary benefits? At this point, it is pertinent to mention here that the issue involved in the present writ petition was directly and substantially an issue in the matter that was decided by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.3665(C)/2001. 10. The above noted O.A. was filed at the instance of the All Orissa Settlement and Consolidation Non-Gazetted Technical Page 7 of 12. Officers Association, Dhenkanal. Moreover, the issue involved in the aforesaid O.A. and the factual background of the case are almost identical to the present case, i.e. whether the past service rendered by the employees in the job contract establishment can be taken into consideration for the purpose of deciding the pension and pensionary benefits? Learned Tribunal, vide order dated 10.03.2011, decided the issue against the Petitioners. Being aggrieved by the decision of the Tribunal, the Petitioner approached this Court by filing W.P.(C) No.21611 of 2011. A Division Bench of this Court after hearing the counsels appearing for the respective parties, vide order dated 19.04.2022, disposed
Arguments
Learned counsel for the Petitioner, at the outset, contended that after his retirement, the Petitioner was initially paid provisional pension and thereafter he was extended with the benefits of final pension. He further contended that being aggrieved by the wrong calculation of pensionary benefits by taking into consideration the incorrect period of service of the Petitioner as a regular employee, the Petitioner submitted several representations before the authority with a prayer to take into consideration the period of service rendered by the Petitioner in the job contract establishment for the purpose of calculation of pension and other pensionary benefits. Since the same was not considered, the Petitioner was compelled to approach this Court by filing W.P.(C) No.12101 of 2022. This Court vide order dated 04.07.2022 disposed of the writ petition by directing the Opposite Party No.4 to consider the representation of the Petitioner dated 10.04.2018 under Annexure-6 to the said writ petition within a period of six weeks. Page 3 of 12. 4. After disposal of the earlier writ petition, the Petitioner once again approached the Settlement Officer, Major Settlement Office, Cuttack, Opposite Party No.4 along with a copy of order dated 04.07.2022 passed in the previous writ application. The Opposite Party No.4 after considering the representation of the
Decision
of the writ petition by quashing the impugned order passed by the Tribunal dated 10.03.2011. While disposing the writ petition, the Hon’ble Division Bench has also referred to and relied upon the ratio decided by the learned Tribunal in the case of Nityananda Biswal v. State of Orissa and others (O.A. No.3020(C) of 2003) wherein the learned Tribunal directed the Opposite Parties to count the period of service rendered in the job contract establishment while calculating the qualifying period of service Page 8 of 12. for the purpose of determination of pension and pensionary benefits. 11. In the rejoinder affidavit, learned counsel for the Petitioner has also referred to the order of Division Bench of this Court dated 19.04.2022 passed in W.P.(C) No.21611 of 2011. The rejoinder affidavit further reveals that although the State- Opposite Parties challenged the order dated 19.04.2022 before the Hon’ble Supreme Court by filing Special Leave Petition (Civil) Diary No(s). 36299 of 2022, however, the Hon’ble Supreme Court vide order dated 14.12.2022 dismissed the SLP preferred by the State-Opposite Parties by holding that no ground was found to interfere with the impugned order of this Court. Thus, the issue with regard to counting of the period of service rendered in the job contract establishment along with the service period rendered in the regular establishment for the purpose of pension and pensionary benefits has attained finality in view of the judgments discussed hereinabove. 12. Referring to the rejoinder affidavit, learned counsel for the Petitioner further contended that after dismissal of the SLP Page 9 of 12. preferred by the State-Opposite Parties, the Opposite Parties have already implemented the order vide their Office Order dated 23.11.2023 under Annexure-10 to the rejoinder affidavit. On perusal of the Office Order under Annexure-10 to the rejoinder affidavit, it clearly appears that the qualifying service period for the purpose of determination of pension and pensionary benefits has been arrived at by adding the length of service in job contract establishment to the length of service rendered in the regular establishment. 13. In the aforesaid factual background, this Court observes that the order passed by this Court which was eventually confirmed by the Hon’ble Supreme Court has already been implemented by the State-Opposite Parties by including the length of service rendered in the job contract establishment in the total qualifying period of service for the purpose of determination of pension and pensionary benefits. 14. In view of the aforesaid analysis of the factual as well as legal position, this Court found that there is no justification in taking a different view than the one which has been approved by Page 10 of 12. the Hon’ble Supreme Court and has attained finality and the same has also been acted upon. As such, denying the claim of the Petitioner to consider the length of service he has rendered in the job contract establishment i.e. from 18.12.1964 to 06.11.1989 is legally untenable. Moreover, the principle laid down by this Court has already been affirmed by the Hon’ble Supreme Court as has been discussed hereinabove. In such view of the matter, this Court has no hesitation in quashing the impugned order dated 17.03.2023 passed by the Opposite Party No.4-Settlement Officer, Major Settlement, Cuttack under Annexure-7 to the writ petition. Accordingly, the same is hereby quashed. 15. The present writ petition is being disposed of by directing the Opposite Parties to extend similar benefits to the Petitioner as has been given to the persons under Annexure-10 to the rejoinder affidavit vide order dated 23.11.2023 by counting the period of service the Petitioner has rendered in the job contract establishment. Accordingly, the pension and pensionary benefits payable to the Petitioner be re-fixed within a period of two months from the date of communication of a certified copy of the judgment. Page 11 of 12. 16. Accordingly, the writ petition stands allowed. However, there shall be no order as to costs. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 2nd April, 2025/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 02-Apr-2025 19:50:35 Page 12 of 12.