The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21388 of 2023 Satyananda Bhadra …. Petitioner Mr. P.K.Mohapatra, Advocate -versus- State of Odisha & others …. Opposite Parties Mr. Iswar Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 17.07.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite parties. Perused the Writ Petition as well as the documents annexed thereto. 4. The present Writ Petition has been filed with the following prayer: “It is therefore, humbly prayed that this Hon’ble Court may graciously be pleased to :- i) Direct the Opp.Parties to prepare the pension paper of the Petitioner by regularizing the service period from 30.07.1998 to 02.08.2021 i.e. the date of termination till appointment for the purpose of pension and pensionary benefits under the Orissa Civil Services (Pension) Rules, 1992 by counting he service period initial appointment 26.09.1985 till retirement in view of the decision of the Apex Court in the case Satbir Singh v. State of Hariyana reported in (2013) 1 SCC 390 as well as the Government Resolution dated 12.12.1997, wherein it has been stated that the Hon’ble High Court of Orissa in in 21.01.1992 from his judgment dated their // 2 // Narusu No.36038/2010, O.J.C.No.2147/91 directed that “for the purpose of calculating the pensionary benefits, so much of their service period shall be reckoned, even if there had been break in their employment so as to make them eligible for pension and in the light of the decision in the case of State of Orissa v.Radheshyam Mohanta, W.P.(C) No.12377/2009, which has been affirmed in SLP(C) Pradhan, O.A.No.1189(C)/2006 which has been confirmed in W.P.(C) No.5377 of 2010 and SLP in Civil appeal No.22498 of 2012 and State of Odisha v. Sarbeswar Bhujabal, W.P.(C) No.7680/2019 which has been confirmed in SLP(C) No.7541/2020 and Chandra Nandi v. State of Odisha and others, W.P.(C) No.19550 of 2021 (decided on 03.02.2021), which has been affirmed by the Hon’ble Supreme Court SLP(C) vide No.21180/2021 as well as the benefits given to similarly situated persons vide Annexure-8; Pass such other order(s)/direction(s) as would be deem fit and proper in the bonafide interest of justice; 06.05.2022 dated order in ii) 5. It is submitted by the learned counsel for the Petitioner that the Petitioner was initially engaged on N.M.R. basis on 26.09.1985 i.e. much prior to the cut-off date as N.M.R. basis continued uninterruptedly. It is further contended by the learned counsel for the Petitioner that the Petitioner is covered by the Finance Department Resolution dated 15.05.1997 which was issued for absorption of N.M.R./D.L.R./Job Contract Employees, those who are continuing in regular establishment. Learned counsel for the Petitioner further contended that by the time the Finance Department Resolution dated 15.05.1997 came into force, the Petitioner has rendered 12 years of continuous service on N.M.R. basis and eligible for absorption in the regular establishment. However, the authorities did not regularize the service of the Petitioner, rather terminated him from service on 30.07.1988 and reinstated in service on 03.08.2021 under regular establishment as Peon as per Order of the Tribuna in O.A.No.1350 of // 3 // 1988 and this Court in OJC No.3335 of 2002. Finally, on 03.08.2021 the service of the Petitioner was regularized under regular establishment as Peon. While the Petitioner was working as such, he was served retirement notice on attaining the age of superannuation, after rendering more than 38 years of service, with effect from 31.07.2023 the Petitioner has to be retired from service. Learned counsel for the Petitioner also contended that after retirement, the Petitioner may not be granted any pensionary and retiral benefit. Accordingly, the Petitioner has approached this Court by filing the present Writ Petition. 6. In course of argument learned counsel for the Petitioner referring to the letter of the Finance Department dated 04.04.2007 submitted that in the said letter the Finance Department has decided that persons who are appointed under Job Contract and Work Charged establishments on or after 01.01.2005 and brought over to regular establishment on or after 01.01.2005 not covered under the O.C.S.(Pension) Amendment Rules, 2005 as notified in Finance Department Notification No.44451/F dated 17.09.2005 and their cases to be governed under the OCS (Pension) Rules, 1992 and existing GPF(O) Rules would be applicable to them. Learned counsel for the Petitioner also relied upon the decision of this Court in the case of Sk.Abdul Motalib-v.-State of Odisha and another in W.P.(C) No.32200 of 2022 decided on 04.01.2023. Learned counsel for the Petitioner also relied upon the decision of this Court in the case of Sri Radhashyam Mohanta-v.- State of Orissa and others in W.P.(C) No.12377 of 2009 decided on 08.03.2010 by a division Bench of this Court. In the aforesaid judgment dated 08.03.2010 the Division Bench of this Court was of the view that the DLR employees are placed in better footing than the Job Contract Employees as the DLR employees were getting pensionary benefit pursuant to the direction of this Court in another Writ Petition. In such view of the matter, learned counsel for the Petitioner submitted // 4 // that the case of the Petitioner be considered in the light of the law laid down by this Court as well as the Hon’ble Apex Court vide Annexure-5 and as has been discussed herein above. 7. Learned Additional Standing Counsel on the other hand submitted that the Petitioner was brought over to the regular Establishment much after the amended Pension Rule of the year 2005 came into force. Further, he was regularized in service on 03.08.2021 which is also after the amended Rule came into force with effect from 01.01.2005. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is not covered under the Old Pension Rule of the year 1992. Learned Additional Standing Counsel referring to a judgment of the Hon’ble Supreme Court in Uday Pratap Thakur and another-v.-The State of Bihar and others and batch of other matters in Civil Appeal No.3155 of 2023 decided on 28.04.2023 to impress upon this Court that the period for which the Petitioner performed his work as Work Charged employee shall not be calculated towards computation of pensionary benefit. 8. In reply to the contentions of the learned Additional Standing Counsel that the case of the Petitioner shall be governed by the law laid down by the Hon’ble Supreme Court in Uday Pratap Thakur and another-v.-The State of Bihar and others. Learned counsel for the Petitioner submitted that the facts of the case in Udaya Pratap Takur’s case are different to the present case. He further submits that in Udaya Pratap Thakur’s case the Hon’ble Supreme Court considered the Work Charged Establishment Revised Service Conditions (Repealing) Rules, 2013 and that was in the context of State of Bihar. Moreover, it is also submitted that in nowhere in the said judgment prohibits that the work charge period shall not be taken into account while considering the qualifying period for pension. Moreover, this Court observes that in the abovenoted judgment the Hon’ble Supreme Court // 5 // was dealing with the case of admissibility of pension to the Work Charged employees and for qualifying period, but in the present case the Petitioner was brought over to the regular Establishment. This Court is of the considered view that 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. 9. Considering the submissions made by the learned counsel appearing for the Petitioner as well as the learned Additional Standing Counsel for the State and keeping in view the background facts of the present case as well as the judgment referred to hereinabove, this Court deems it proper to dispose of the Writ Petition by directing the Petitioner to file a fresh representation taking therein all the grounds along with the judgments relied upon by the Petitioner in support of his contention before the Opposite Party nos. 1 & 2 within a period of three weeks from today. In the event such a representation is filed, the opposite Party nos. 1 & 2 shall do well to consider the same keeping in view the judgment referred to herein above and shall dispose of the representation within a period of two months by passing a speaking and reasoned order. The decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. In the event it is found that the Petitioner is entitled to the pensionary benefit then the same be calculated, sanctioned and paid to the Petitioner within eight weeks from the date of taking such decision. 10. With the aforesaid observation/direction the Writ Petition stands disposed of. ( A.K. Mohapatra ) Judge // 6 // RKS Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Ex-A.R.-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2023 19:04:29