The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.17862 of 2024 Rajani Chhatria & Ors. ..... Petitioners Represented By Adv. - Pravat Kumar Nayak -versus- State Of Odisha & Ors. ..... Opposite Parties Represented By Adv. – M.R.Patra, A.S.C. S.K.Patra, Standing Counsel for A.G., Odisha CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 19.02.2025 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioners as well learned Additional Standing Counsel for the State-Opposite Parties and
Legal Reasoning
Mr.S.K.Patra, learned Standing Counsel for Accountant General (A&E), 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: Page 1 of 10. “It is therefore pray that let this Hon'ble Court may graciously be please to allow this prays before this Hon'ble Court be pleased to; in i. ii. favour of
Decision
The writ petition is allowed. Issue Rule NISI, asking the opp-parties to show cause as to why they shall not be directed to grant minimum pension the petitioners by adding so much of period of service from G.P Secretary with their regular service of VLW and release the pension and pensionary benefits along with 18% interest and all Consequential benefits in accordance with the ration decided vide Annexure-3 & 4 and decision reported in SLP No 28065/2019 on 27.11.2019 within a stipulated period. iii. And pass any other any order/orders, direction / directions be passed granting complete relief to the petitioner.” 4. The factual background leading to the filing of the present writ application is that the petitioners were initially appointed as Gram Panchayat Secretary on 01.11.1975 with a consolidated pay of Rs.35/- in Miteipur Gram Panchayat. Thereafter, the Government in Panchayati Raj Department vide resolution order No.4947 dt.7.2.2009 and 17422 dt.20.5.2009 raised the scale of pay 5200- 20,200/-. The total expenses on such enhanced remuneration to the Gram Panchayat Secretary were bone by the Government, by the contingency fund. Therefore, it has been alleged in the writ application that the petitioners were getting his salary/remuneration from the State Government. 5. While continuing as Gram Panchayat Secretary the petitioners were promoted to the post of Village Labour Worker (VLW) vide order No.275 dated 30.05.2009 by the Collector, Puri and such the Page 2 of 10. petitioners joined in Astarang Block as VLW on 30.05.2009 and continued till 2.2.2016. It has also been stated in the writ application that as a VLW petitioners have rendered 14 years 03 month and 02 days of service and prior to their promotion to the post of VLW, the petitioners have rendered service as a Gram Panchayat Secretary for 34 years 06 months. It has also been accepted in the writ application that the post of VLW is a civil past and as such the same is a pensionable service. Accordingly, it has been prayed in the writ application that the petitioners be paid the proportionate pensionary benefits taking into consideration the length of service rendered by the petitioners as VLW in the pensionable establishment. 6. Learned counsel for the petitioners in course of his argument submitted that the petitioners have rendered more than 7 years of service as VLW. He further contended that by taking the shortfall period from their service rendered as Gram Panchayat Secretary the entire service period of the petitioners can be rounded off to 38 years whereafter the petitioners are entitled to get full pensionary benefits which is to be calculated on the basis of last pay drawn by the petitioners as VLW. In course of his argument learned counsel for the petitioners referred to the judgments of this Court in State of Orissa and others V. Niranjan Biswal in W.P.(C) No.6267 of 2018 decided on 30.08.2018. He also contended that a Division Bench of this Court in Niranjan Biswal’s case (supra) has upheld the judgment of the learned OAT, wherein the learned OAT has directed for grant of minimum pension to VLW who had worked for less than 10 years and as such their service was not pensionable. The learned Tribunal had also directed to calculate to pay minimum pension to the petitioners in Niranjan Biswal’s case (supra) by adjusting the Page 3 of 10. shortfall period from the pensionable service, from the service as Gram Panchayat Secretary. Distinguishing the case of the present petitioners learned counsel for the petitioners submitted that the petitioners in the present case have served as a VLW for more than 7 years on being duly promoted to such post by the Collector-cum- District Magistrate vide order dated 20.05.2009. He also referred to the judgments of this Court in (Settlement class-IV job contract Employees Union, Balasore-Mayurbhanj District v. State of Orissa and others) decided on 24.03.1992 in OJC No.2147 of 1991. The order of this Court has been upheld by the Hon’ble Supreme Court in SLP No.28065 of 2019 by dismissing such SLP vide order dated 18.05.2022. In a similar case this Court in W.P.(C) No.39138 of 2021 vide order dated 15.12.2021 directed the State Opposite parties to release the pension and pensionary benefits as well as arrear pension in favour of the petitioners within a stipulated period of time. Copies of the orders relied upon by the learned counsel for the petitioners have been annexed to the writ application. 7. Similarly, learned counsel for the petitioners also referred to the judgment a Division bench of this Court in Padmanav Barik V. State of Odisha and others in W.P.(C) No.3987 of 2017 which was disposed of on 19.04.2022. By referring to the aforesaid order, the learned counsel for the petitioners submitted that in Padmanav Barik’s case this Court while following the order passed in Nitranjan Biswal V. State of Odisha and others, which was eventually upheld by the Hon’ble Apex Court, has directed the Opposite Parties extend all such benefits to the petitioners as has been done in the case of Nitranjan Biswal. 8. In course of his argument learned counsel for the petitioners Page 4 of 10. drawing attention of this Court to Rule 18 of O.C.S. Pension Rules, 1992 submitted that Rule18(2) of the aforesaid rules provides for an exception with regard to services which are not pensionable and as such are not eligible to get pension. In such category the work charge establishment has been included under 18(2)(II). However, he further contended that under Sub Rule 4 of Rule 18 further exception has been carved out. The said rule 18(4) provides as follows: - “Notwithstanding anything contained in Sub-Rule (1) Government may, by general or special order; prescribe any class of service or post which were previously born under Work Charged establishment or paid from contingencies to be pensionable.” 9. On a careful analysis of Sub Rule 4 this Court observes that an exception has been carved out and power has been conferred on the State Government to grant pensionary benefit to the employees in the work charge establishment by passing general or special orders, thereby specifying any class or service or post. 10. Learned counsel for the petitioners further contended that in an identical case, pursuant to direction of this Court which was eventually upheld by the Hon’ble Apex court, the Government of Odisha in PR and DW Department vide letter dated 31.01.2024 has extended the benefits in favour of one Khetramohan Nayak and 21 others who are also working as VLWs. On perusal of a copy of order dated 31.01.2024, which was produced before this Court, this Court observes that the PR and DW Department, Government of Odisha while considering the case of Khetramohan Nayak and 21 others has taken note of the judgments by this Court as well as of the Apex court, and after obtaining the views of the law department, especially in the case involved in SLP (C) No.28065 of 2019 decided on Page 5 of 10. 27.11.2019, had extended the pensionary benefits to such petitioners subject to the condition that the petitioners who have been covered under NPS are required to refund the employer’s share for coverage under the O.C.S. Pension Rules, 1992. Accordingly, considering the case of Khetramohan Nayak and 21 others as a special case, the PR and DW Department Govt. of Odisha has passed orders thereby sanctioning grant of minimum pension in favour of such persons. 11. Learned Additional Standing Counsel referring to a Division Bench judgment of this Court in Adwait Chandra Jena vs. Khandahata Grama Panchayat & ors. reported on 1998 II OLR 410 submitted before this Court that the Division Bench of this Court has categorically already that the post of G.P. Secretary is not a civil post under the Govt. and such G.P. Secretaries are not Govt. servant. In such view of the matter, learned A.S.C. contended that the Petitioners are not entitled to any pensionary benefits in respect of the period for which they have worked as G.P. Secretary on being appointed by the respective G.P. 12. While further elaborating his argument, learned Additional Standing Counsel referred to the judgments Hon’ble Supreme Court in Udaya Pratap Thakur and another V. State of Bihar and others in SLP (C) No.10653 of 2018 which was decided on 28th April, 2023 along with batch of similar other cases. Further, referring to the aforesaid judgment learned Additional Standing Counsel submitted that a similar ground was raised before the Hon’ble Apex court by submitting that the entire period of service rendered as work charge as should be considered and be counted for the purpose of fixation of quantum of pension. Such a contention of the appellants was specifically rejected by the Hon’ble Apex Court by saying that the Page 6 of 10. acceptance thereof would tantamount to regularizing their service from the initial appointment as work charge. The Hon’ble Supreme Court in the aforesaid judgment has also observed that in view of the several judgments of the Hon’ble Supreme Court there exists a distinction between regular employee appointed on a substantive post and a work charge employee working under work charge establishment and, that work charge employees are not appointed on a substantive post. Therefore, it has been held that the services rendered as work charge cannot be counted for the purpose of pension/fixation of quantum of pension. While saying so the Hon’ble Apex Court was also observed that taking into consideration the considerable length of service as work charge employees, and thereafter the services having been regularized, such employees cannot be denied the pension on the ground they have not completed the qualifying service period for pension. In view of the aforesaid legal position learned Additional Standing Counsel submitted that the petitioners are not entitled to any pensionary benefits as has been claimed in the present writ application. 13. Having heard the learned counsels appearing for the respective parties, on a careful examination on their contentions as well as on a scrutiny of the background facts of the present case and on careful examination of the materials on record, this Court observes that the petitioners were initially engaged as Gram Panchayat Secretary on 01.11.1975. After working for more than 34 years continuously as Gram Panchayat Secretary, the petitioners were appointed as VLW by order of the District Collector dated 30.05.2009. As VLW worker they are drawing salary from the contingency fund of the State Government. In the post of VLW, the petitioners have worked for Page 7 of 10. more than 7 years. Therefore, the case of the petitioners cannot be simply treated as case of work charge employee and accordingly their claim for pensionary benefit be brushed aside by this Court. While considering the case of the petitioners this Court found that the petitioners have been rendering their service for close to 38 years. In other words, the entire service period of the petitioners have been scarified while serving as Gram Panchayat Secretary initially and thereafter as VLW. The service book which has been annexed to the writ application Annexure-2 also reveals that the petitioners were given promotion by the D.P.O., Puri vide order dated 12.02.2009 and they were granted a scale of pay as would be evident from the service book annexed to the present writ application. Furthermore, taking into consideration the long service period of the present petitioners, this Court is of the considered view that, the persons like the present petitioners, cannot be thrown out by the Government and be left high and dry. It is pertinent to mention here that it is not disputed that the petitioners were appointed as regular VLW by order of the Collector, Jagatsinghpur and they were granted a scale of pay. 14. This Court has further examined the provisions contained in rule 18(4) of the O.C.S. Pension Rules 1992. On a careful scrutiny aforesaid provision, this Court is of the considered view of the same has been carved as an exception to Rule 18(2) of the pension rules which has excluded the work charge employees from its purview Rule 18(4) which has been worded with words “notwithstanding anything contained in sub rule 1” speaks a volume about the intention behind having such rule in the rule book. Sub-rule 4 of rule 18 confers the power on the Government to declare any class of work charge establishment as a special class by passing a general or special Page 8 of 10. order in respect of those employees who have been paid from the contingency and to declare them as pensionable service. By applying the aforesaid rules 18(4) to the fact of the present case this Court is of the considered view that the case of the petitioners deserves to the petitioners by the Government under the aforesaid rule 18(4) by taking into consideration the fact that the petitioners have been rendering their service for more than 7 years as a VLW. 15. In view of the aforesaid analysis of law, and on examination of the factual background of the present case, this Court is of the considered view that the case of the petitioners deserves to be considered under Sub-rule 4 of Rule 18 by the State Government. This Court further observes that 4 the facts that present case complies with all the requirements as provided in sub-rule 4 of Rule 18 so as to declare the VLW as a special class by passing general or special order, and declaring such post to be pensionable service. Accordingly, the Opposite party No.1 is directed to consider the case of the petitioners under Rule 18(4) of the O.C.S. pension Rules, 1992, keeping in view the aforesaid analysis and the factual background and, pass a speaking and reasoned order in the case of the petitioners. Further, it is directed that in the event Opposite party No.1 comes to a conclusion that the petitioners satisfy all the requirements of Rule 18(4), then necessary follow-up orders, as has been provided sub Rules, be passed by taking into consideration the entire VLW period of service of the petitioners as pensionable service and accordingly, the petitioners be granted all pensionary benefits as is due and admissible as per law, within a period of three months from the date of communication of a certified copy of this order by the petitioners. Page 9 of 10. 16. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Page 10 of 10. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 21-Feb-2025 12:21:39