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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16846 of 2022 Girish Chandra Rout and Others …. Petitioners Mr. K.K. Swain, Adv. -versus- State of Odisha & Others …. Opp. Parties Mr. S.K. Jee, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 10. 1. This matter is taken up through Hybrid
Decision
ORDER 05.03.2025 Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioners have filed the present Writ Petition inter alia with the following prayer: - “Under the above circumstances, it is humbly prayed that the writ petition may be allowed; (A) a writ of mandamus or an appropriate writ may be issued quashing Clause-5 of the regularization order under Annexure-8 issued by the Inspector of Schools, Sundargarh Circle, Sundargarh and necessary direction may be made to the opposite parties to bring the petitioners under the coverage of the Odisha Civil Service (Pension) Rules, 1992 so far as pension and other retiral benefits are concerned and they may also be permitted to subscribe for // 2 // G.P.F. as per the G.P.F. (O) Rules, 1938 as they were doing before prior to its amendment, within a time to be stipulated by this Hon’ble Court. (B) And any other order/orders or direction/directions may be issued so as to give complete relief to the petitioners.” 4. It is contended that all the petitioners were appointed on contractual basis though against Substantive Vacant Posts in terms of the advertisement issued by the O.P. No.2 on dtd.08.11.2003. Copy of the advertisement so produced by learned counsel for the petitioner by way of a memo already on record also shows that against Substantive Vacant Post, petitioners were engaged on contractual basis vide orders issued under Annexure-1 series. 4.1. As found from Annexure-1 series, all the petitioners were engaged on contractual basis vide different orders issued in the year 2004. It is also found that all the petitioners taking into account their continuance on contractual basis were regularized under Annexure-2 series with effect from different dates of the year 2010. 4.2. It is also contended that on being so regularized vide orders under Annexure-2 series, petitioners were permitted to be governed under the GPF (O) Rules, 1938 and they are allowed to make their subscription towards GPF contribution. But all of sudden when the said benefit was withdrawn vide order dated 02.07.2014 of Page 2 of 7 // 3 // O.P. No.3 under Annexure-6, matter was carried to the Tribunal in O.A. No.1435 of 2014 and batch. The Tribunal while issuing notice of the matter vide order dated 05.07.2014 under Annexure-7 stayed the operation of order dated 02.07.2014 under Annexure-6. 4.3. It is contended that in terms of the said interim order, petitioners as usual were allowed to make their contribution towards GPF and such continuance is also continuing as on date. It is contended that one of the said original application after being transferred to this Court in W.P.C(OA) No.1450 of 2014 was disposed of vide order dated 18.04.2022 with a liberty to the petitioner therein to challenge Clause-5 of the order of regularization issued under Annexure-2 series. Clause- 5 of the order of regularization available under Annexure-2 series reads as follows:- “5. The pensionary benefits admissible to the state restructured defined Govt. Servants under contribution scheme as per the amended provision for the Orissa Civil Service (Pension) Rules, 1992 vie Finance Department Notification No.44451/F dt.17.09.2005 shall be applicable to those teachers.” the newly 4.4. It is contended that in terms of the said liberty, the present Writ Petition has been filed challenging the stipulation contained in Clause-5 of the order of regularization issued on 08.12.2011 under Annexure-2 series. 4.5. It is contended that since all these petitioners were appointed on contractual basis as against Substantive Page 3 of 7 // 4 // Vacant Posts as reflected in the advertisement dated 08.11.2003 and they were regularized vide different orders issued in the year 2011 under Annexure-2 series w.e.f. 2010, and were also allowed to make their subscription towards GPF and such subscription is continuing as on date, claims of the petitioners to be covered under the OCS (Pension) Rules, 1992 and GPF(O) Rules, 1938 is squarely covered by an order passed by this Court in W.P.(C) No.26508 of 2017 (Swetapadma Samal Vs. State of Odisha and Others). This Court in Para-6, 7 and 26 of the said judgment has held as follows:- “6. Regard being had to the facts and rival contentions, as narrated above, the only question to be determined by this Court is, whether the petitioner, who was initially appointed on contractual basis prior 01.01.2005 and regularised after subsequently 01.01.2005, can be extended with the benefit of the OCS (Pension) Rules, 1992 and the GPF (O) Rules, 1938 or not? to 7. There is no dispute before this Court that the petitioner was appointed on contractual basis pursuant to the appointment order issued on 07.07.2003, as per the prevailing 1972 Rules and the guidelines issued from time to time, being sponsored by the Chairman, Committee of the Chief Engineers and concerned Heads of Department and Engineer-in-Chief (Civil), Odisha, Bhubaneswar. Even though such order of appointment was issued on contractual basis, that itself was against a substantive vacancy. Merely because the Government had taken austerity measures due to mounting revenue deficits, the petitioner was given appointment on contractual basis for fixed term and on completion of six years her services were regularised against a substantive vacant post. This itself indicates that a right had been accrued in favour of the petitioner, the day she joined in the post on contractual basis and subsequently completion of six years of service. By the time the appointment on contractual basis was given on regularised in the said post on Page 4 of 7 // 5 // into the opposite parties, bringing her 07.07.2003, the OCS (Pension) Rules, 1992 was in force. Therefore, rightly after completion of six years of service on contractual basis, when the petitioner was brought to the regular establishment, her GPF account was opened and GPF number was allotted in her favour by the pensionable establishment. But all of a sudden, the benefit, which had been extended in favour of the petitioner by opening the GPF Account, was withdrawn on the sole ground contending that by the date of regularisation of the services of the petitioner since the OCS (Pension) Amendment Rules, 2005 has already come into force, the petitioner cannot be brought into the fold of the OCS (Pension) Rules, 1992. But fact remains, if the commencement of the OCS (Pension) Amendment Rules, 2005 giving effect from 01.01.2005, the petitioner ought to have been covered under the old rules, i.e. OCS (Pension) Rules, 1992, instead of bringing her under the OCS (Pension) Amendment Rules, 2005, i.e., New Restructured Defined Contribution Pension Scheme, which has come into force with effect from 01.01.2005. the posts are made available prior to xxxx xxxx xxxx xxxx the and even though petitioner the OCS 26. Applying the said analogy to the present case, if the petitioner was appointed against the substantive vacancy on 07.07.2003, i.e., prior to commencement of the OCS (Pension) Amendment Rules, 2005, may be on contractual basis, and discharging her responsibility and subsequently her services were regularised after completion of six years uninterrupted contractual employment, (Pension) Amendment Rules, 2005 came into force with effect from 01.01.2005, that has no application to the present case to such relief from the date of her initial appointment and not from her regularisation of service after completion of her six years of contractual employment. Under such circumstances, the Tribunal should not have remanded the matter to the State Government for consideration, so far as applicability of the circular issued on 04.04.2007. Even otherwise also, if the benefit has already been extended to the job-contract and work-charged employees, the contractual employee appointed against the substantive vacancy stands on a much better footing than those persons, for which the benefit should have been extended to the petitioner by initial reckoning her service appointment on contractual basis, otherwise, it will amount to unreasonable and arbitrary exercise of power the date of from is entitled Page 5 of 7 // 6 // and, more so, violation of Articles 14 and 16 of the Constitution of India.” 4.6. It is contended that since similar claim as in the case of Swetapadma Samal as cited (supra) has been allowed by this Court, claim of the petitioners being similar, petitioners are also eligible and entitled to get similar benefit. It is accordingly contended that appropriate order be passed in the light of the order passed in the case of Swetapadma Samal. 5. Learned Addl. Govt. Advocate on the other hand contended that the issue decided in the case of Swetapadma Samal is not applicable to the facts of the present case and made his submission basing on the stand taken in the counter affidavit. It is also contended that since the petitioners were appointed on contractual basis and not against any vacant sanctioned posts with their regularisation vide different orders issued in the year 2011, their claim is not similar to the claim decided in the case of Swetapadma Samal. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that claim of the petitioners as made in the Writ Petition is squarely covered by the judgment passed by this Court in the case of Swetapadma Samal as cited (supra). Therefore, this Court while allowing the prayer as made in the Writ Petition, dispose of the Writ Petition in the Page 6 of 7 // 7 // light of the judgment passed in the case of Swetapadma Samal. 7. The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Mar-2025 17:49:04 Page 7 of 7