The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 23475 of 2023 Dr. Rajendra Narayan Sahu …. Petitioner Mr. N. Rath, Advocate -Versus- State of Odisha and another …. Opposite Parties Mr. B. Dash, ASC CORAM: MR. JUSTICE R. K. PATTANAIK Order No. ORDER 04.07.2025 04. 1. Heard Mr. Rath, learned counsel for the petitioner and Mr. Dash, learned ASC for the State. 2. Instant writ petition is filed by the petitioner quashing the order of rejection dated 13th June, 2022 as at Annexure-9 of opposite party No.1 and further to direct the opposite parties to regularize his services on and from the date of initial appointment i.e. 24th February, 2004 on contractual basis and to disburse him all service and financial benefits being covered under the Odisha Civil Services (Pension) Rules, 1992 (hereinafter referred to as ‘the Rules’) and General Provident Fund (Odisha) Rules, 1938 (shortly as ‘the GPF Rules’) on the grounds stated therein. 3.
Legal Reasoning
Mr. Rath, learned counsel for the petitioner submits that in view of Rule 18(6) of the Rules, the petitioner having been brought over to the regular establishment, he is eligible Page 1 of 9 for pension. The further submission is that in view of the notification dated 17th September, 2005 of the Finance Department, Government of Odisha and introduction of the Odisha Civil Services (Pension) Amendment Rules, 2005 (in short, ‘the Rules, 2005’), the same are applicable to all persons appointed w.e.f. 1st day of January, 2005 being governed by the Contribution Pension Scheme but for the letter dated 4th April, 2007 of the Finance Department, Government of Odisha with the clarification addressed to all Heads of the Departments and others, the petitioner having been appointed prior to 1st January, 2005 and brought over to the regular establishment on 25th December, 2008, he would be covered by the Rules and not the Rules, 2005 but while considering the same and dealing with the representation dated 6th December, 2021 i.e. Annexure-7, opposite party No.1 declined it vide Annexure-9. Such decision of the State Government as per Annexure-9, it is contended by Mr. Rath, learned counsel, is to be erroneous and particularly, in the view of the clarification issued by letter dated 4th April, 2007 of the Finance Department. In support of such contention, demanding pension in favour of the petitioner, Mr. Rath, learned counsel for the petitioner relies on a decision of a Division Bench of this Court in W.P.(C) No.26508 of 2017(Swetapadma Samal Vrs. State of Odisha and others) dated 22nd September, 2023 and also order of the Apex Court in State of Himachal Pradesh and another Vrs. Sheela Devi reported in 2023 Live Law (SC) 662 with the Page 2 of 9 contention that the petitioner is eligible and entitled to pension under the Rules and therefore, the impugned order of rejection dated 13th June, 2022 as per Annexure-9 is liable to be quashed with consequential directions issued in that regard. 4. On the contrary, Ms. Dash, learned ASC for the State refers to the counter affidavit filed by the State through opposite party No.1 to submit that the petitioner is to be governed by the new pension rules him having been regularized after 1st January, 2005 even though appointed earlier thereto. It is also submitted that the SLPs filed by the State Government before the Apex Court have been disposed of by a common order dated 16th April, 2024 with an observation that such plea for regularization and entitlement of service benefits shall not be treated as a precedent and in such view of the matter, any such demand of the petitioner, if accepted with regard to pension under the Rules, it would open a floodgate. The essence of the argument of Ms. Das, learned ASC for the State is that the petitioner is covered by the Rules, 2005 introduced and effective from 1st January, 2005 and therefore, opposite party No.1 did not err in passing the rejection order dated 13th June, 2022 i.e. Annexure-9, hence, therefore, the same is not be disturbed. 5. The relevant provision, such as, Rule 18 of the Rules is reproduced herein below: “18. Conditions subject to which service qualifies- (1) Service does not qualify for pension unless it is rendered in a pensionable establishment /post. Page 3 of 9 (2) The entire continuous temporary or officiating service under Government without interruption in the same post or any other post, shall count for the purpose of pension in respect of all categories of Government servants except in the following cases, namely: (i) Period of service establishment; a non-pensionable in in service the work-charged (ii) Period of establishment; (iii) Period of service paid from contingencies; (iv) Where the employee concerned resigns and is not again appointed to service under Government or is removed/dismissed from public service; (v) A probationer who is discharged from service for failure to pass the prescribed test or examination; (vi) Re-employed pensioner, Government servants engaged on contract and Government servants not in whole time employment of Government; (vii) Service paid from Local Fund or Trust Fund; (viii) Service in an office paid by fees whether levied by law or under authority of the Government or by Commission; and (ix) Service paid out of the grant in accordance with Law or Custom. (3) Notwithstanding anything contained in clauses (i) and (ii) of sub-rule (2) a person who is initially appointed by the Government in a work-charged establishment for a period of five years or more and is subsequently appointed to the same or another post in a temporary or12 substantive capacity in a pensionable establishment without interruption of duty, the period of service so rendered in work-charged establishment shall qualify for pension under this rule. (4) 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. (5) Notwithstanding anything contained in sub-rules (1) and (2) in case of a Government servant belonging to Government of India or other State Government on his permanent transfer to the State Government the continuous service rendered by him under pensionable Page 4 of 9 establishment of Government of India or any other State Government, as the case may be, shall count as qualifying service for pension. (6) Notwithstanding anything contained in Clauses (i) and (iii) of Sub-rule (2), a person who is initially appointed in a job contract establishment and is subsequently brought over to the post created under regular/pensionable establishment, so much of his job contract service period shall be added to the period of his qualifying service in regular establishment and would render him eligible for pension.” 6. On a reading of the above provision with reference to Sub-Rules (1) and (2) thereof of Rule 18 of the Rules, it is made to understand that notwithstanding any such period of service in a non-pensionable or work charged establishment, a person, who is initially appointed in a job contract establishment and subsequently, brought over to the post created under regular establishment so much of the period of his job contract service to be included as the qualifying period to make him eligible for pension and referring to the same, Mr. Rath, learned counsel for the petitioner contends that the case of the petitioner is hence to be covered by the old pension rules. 7. Notwithstanding, the notification dated 17th September, 2005 of the Finance Department, Government of Odisha related to the new pension rules and the fact that all persons are appointed under the State Government w.e.f. 1st January, 2005 shall not be eligible for pension, however, in view of the clarification issued on 4th April, 2007, a copy of Page 5 of 9 which is produced by Mr. Rath, learned counsel for the petitioner during and in course of hearing, it is made to reveal that all such persons, who are appointed under job contract or work charged establishment prior to 1st January, 2005 but have been brought over to regular establishment after the said date are not to be covered under the new pension scheme of 2005 and as such, would be governed under the Rules. There has been further clarification of the Finance Department, Government of Odisha dated 18th July, 2007 regarding admission to the General Provident Fund with reference to the letter dated 4th April, 2007, a copy of which is also produced in course of hearing by Mr. Rath, learned counsel for the petitioner. Considering the above notification of the State Government dated 4th April, 2007 and thereafter, dated 18th July, 2007 with regard to entitlement to General Provident Fund in respect of the persons appointed in the job contract and work charged establishment brought over to the regular establishment after 1st January, 2005, the conclusion is irresistible and to the effect that the petitioner, whose services stand regularized in the year 2008 being appointed prior to 1st January, 2025 shall have to be held as eligible for pension under the Rules. 8. In Swetapadma Samal (supra), this Court have had the occasion to consider an identical case and therein, it has been concluded as such: “26. Applying the said analogy to the present case, if the petitioner was appointed against the substantive Page 6 of 9 the OCS 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, even (Pension) though Amendment Rules, 2005 came into force with effect from 01.01.2005, that has no application to the present case and the petitioner is entitled to such relief from the date of her initial appointment and not from her regularization of service after completion of her six such years of contractual employment. Under 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 employee the 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 from appointment on contractual basis, otherwise, it will amount to unreasonable and arbitrary exercise of power and, more so, violation of Articles 14 and 16 of the Constitution of India.” the date of employees, contractual In sum and substance, on a proper reading of the above decision, the Court finds that in view of the circular of the Government dated 4th April, 2007, the petitioner therein who was initially in job contract and subsequently brought over to the regular establishment having been appointed against a substantive post was allowed to be brought within the fold of the Rules and the GPF Rules with a direction to grant him all consequential benefits due and admissible. 9. In Sheela Devi (supra), the Apex Court, while dealing with a matter of similar nature but with reference to the Page 7 of 9 provisions of the Central Civil Services (Pension) Rules, 1972 concluded that the employees working on contract basis regularized after at a later stage, the past service rendered by them as contractual employees shall be taken into account for the purpose of pension. 10. Having regard to the case laws discussed hereinbefore and in view of Rule 18 (6) of the Rules and the clarification of the State Government in Finance Department dated 4th April, 2007 and carried forward with the circular dated 18th July, 2007 including the contractual employees brought over to regular establishment within the coverage of General Provident Fund, the ultimate view of the Court is that the petitioner’s case should have been accordingly dealt with allowing him similar benefits instead of the order of rejection dated 13th June, 2022. In so far as, the disposal of SLPs by the Apex Court, are concerned, a copy of which is annexed to the rejoinder affidavit of the petitioner, recording the submission of Ms. Dash, learned ASC for the State that it shall not be a precedent but having regard to the fact that the same relates to regularization of services and was affirmed despite a challenge by the State Government, in the humble view of the Court, it is no relevant vis-a-vis demand for pension by the petitioner since pleaded. The Court is, therefore, of the final conclusion that the petitioner, who was engaged contractually and he having been regularized even though after 1st January, 2005, for the discussions made hereinabove, with reference to Page 8 of 9 the circulars of the Government dated 4th April, 2007 and 18th July, 2007besides Rule 18(6) of the Rules, the rejection order as per Annexure-9 cannot be sustained in law. 11. Accordingly, it is ordered. 12. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order of rejection dated 13th June, 2022 as per Annexure-9 is hereby quashed with a direction to opposite party No.1 to allow pension to the petitioner as per the Rules and to disburse all such financial benefits as due and admissible concluding the exercise as soon as possible preferably within a period of six weeks from the date of receipt of a copy of this order. 13. Issue urgent certified copy of this order as per rules. Rojina (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 10-Jul-2025 18:35:33 Page 9 of 9