The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 25196 of 2022 Premananda Dash …. Petitioner Mr. P.K. Ray, Advocate -versus- State of Odisha and others … Opposite Parties Mr. Debasish Nayak, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 04.03.2024 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State- Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with a prayer to quash the impugned order dated 02.08.2022 under Annexure-5 to the Writ Petition and for a further direction to the Opposite Parties to accept that the Petitioner is deemed to have been regularized in service on completion of five years of service from the date of his appointment in terms of the Government Circular and in the light of the judgment of the Hon’ble Supreme Court as well as this Court and, accordingly the Petitioner be // 2 // allowed pensionary benefit and other post retiral benefit as is due and admissible to the Petitioner from the date of his entitlement keeping in view the provisions of OCS(Pension) Rule, 1992. 4. The factual background leading to filing of the present Writ Petition is that on 29.07.1994 the Petitioner was appointed as Khalasi under Work Charged Establishment by Opposite Party No.4 i.e., Executive Engineer, Irrigation Division, Nimapara. While working as such, the Petitioner was retired from service on attaining the age of superannuation on 31.01.2021. Since the service of the Petitioner was not regularized and he was not extended the pensionary benefit, the Petitioner had earlier approached this Court in W.P.(C)
Decision
No.39954 of 2021 which was disposed of on 19.01.2022 with a direction to the Opposite Parties to consider the case of the Petitioner within a period of three months in accordance with law. 5. After disposal of the aforesaid Writ Petition, the Petitioner approached Opposite Party No.1 for consideration of his representation as directed by this Court vide order dated 19.01.2022. However such representation was rejected by Opposite Party no.1 vide his order dated 02.08.2022. 6. Mr. Ray, learned counsel for the Petitioner in course of his argument, referring to the judgment of this Court in the case of Debendranath Samal –v. State of Odisha and others in W.P.(C) No.4604 of 2021, along with batch of similar Writ Petitions, which was disposed of by this Court vide impugned // 3 // judgment dated 22.11.2023, submitted before this Court that the Petitioner in the above noted Writ Petition is similarly placed to the present Petitioner. This Court after a detailed analysis of the factual background as well as law applicable to the fact of the case of the Petitioner, has come to a categorical conclusion that the Petitioners were working for several decades as Daily wage labour on DLR basis. Thereafter, they were brought over to the Work Charged establishment and continued till retirement from their service. Accordingly, this Court held that unless the Petitioners are paid their pensionary benefit, it would cause injustice to the Petitioner. Accordingly, the abovenoted Writ Petition was disposed of by setting aside the impugned order and further directing the Opposite Party no.1 to regularize the services of the Petitioner for a day only i.e day before the date of retirement and the Petitioner be paid the pensionary benefit in terms of the judgment in the case of Narsu Pradhan-v.-State of Odisha as decided by this Court, eventually affirmed by the Hon’ble Supreme Court within a period of three months. Since the Petitioner stands in a similar footing with the persons who had earlier approached this Court along with the above named Debendranath Samal, the Petitioner claims parity with the abovenamed persons and seeks similar relief as has been granted in the case of Debendranath Samal. 7. Learned Additional Government Advocate on the other hand contended that the representation of the Petitioner having been rejected earlier, there is no further scope to consider the case again. He further contended that OCS(Pension) Rule, 1992 // 4 // does not provide for grant of retiral and pensinoary benefit to the Work Charged employees and that since the Petitioner was admittedly working in the work charged establishment by the time they took retirement from service, their services were not regularized in pensionable establishment. Accordingly, the Petitioners are not entitled to the pensionary benefit as claimed in the present Writ Petition. 8. In course of argument, learned Additional Government Advocate also refers to the Resolution of the G.A. Department, Government of Odisha dated 15.05.1997 and the same provides some preconditions which are required to be fulfilled before bringing the employees to the Work charged establishment and eventually regularisation of their services. In view of the aforesaid G.A. department Resolution learned Additional Government Advocate submitted that regularization of service of the Petitioner is not automatic, rather the same is subject to fulfillment of condition of the Resolution dated 15.05.1997. Moreover since the Petitioner was not regularized, he is not entitled to any pensionary benefit and there is no such provision in the OCS(Pension) Rule, 1992. 9. Learned Additional Government Advocate in course of his arguments refers to Paragaph-6 of his Counter Affidavit and submitted before this Court that the Petitioner has been granted benefit in terms of Work Charged Employees (Appointment and Condition of Service) Instructions, 1974. Therefore, they have no further right to claim any other benefit as they will be governed under the aforesaid instruction of the year 1974. He // 5 // further contended that in view of the G.A. department Resolution dated 15.05.1997 NMR/DLR were absorbed and were subsequently brought to Work Charged establishment by creating adequate number of posts in the said Work Charged establishment. In view of the aforesaid submissions, earned Additional Government Advocate submitted that the Petitioner is not entitled to any other benefit. Accordingly, the Writ Petition is devoid of merit and accordingly be dismissed. 10. In reply to the argument of the learned Additional Government Advocate, learned counsel for the Petitioner submitted that the grounds raised in the Counter Affidavit, as well as the submissions made by the learned Additional Government Advocate have been taken into consideration in the earlier Writ Petition. On the face of such ground, this Court by a detailed judgment has come to a conclusion that similarly situated persons, who are Petitioners in the above Writ Petition have been extended with such benefit. Learned counsel for the Petitioner further contended that pursuant to the judgment of this Court in the abovenoted judgment, the employees involved therein have been given vide Office order dated 27.08.2021 under Annexure-15 to the Writ Petition The Petitioners stand in a similar footing with the present Petitioner and such persons are covered by the judgment of the learned Tribunal in O.A. No. 2599(C) of 1999 in the matter of Kashidev Moharana-v.-State of Odisha and others which was eventually affirmed by the Hon’ble Supreme Court as well as this Court. In the aforesaid factual as well as legal background, learned counsel for the // 6 // Petitioner submitted that the impugned order is unsustainable in law. Therefore, the case of the Petitioner needs to be considered afresh keeping in view the subsequent development that has taken place in the case of similarly situated employees. 11. In view of the aforesaid analysis of facts as well as law, on a careful examination of the submissions of the learned counsel appearing for the parties, further taking into consideration the judgment relied upon in course of hearing, this Court is of the considered view that the impugned rejection order under Annexure-5 needs to be set aside and the matter be reconsidered in the light of the later development that has taken place which has been discussed hereinabove. Accordingly, the impugned rejection order dated 02.08.2022 under Annexure-5 to the Writ Petition is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the case of the Petitioner afresh by taking into consideration the law laid down in Debendranath Samal’s case as well as Narsu Pradhan’s case within a period of two months from the date of communication of the order. It is further directed that the Opposite Party No.1 shall first examine as to whether the present Petitioner stands in a similar footing with the above named persons and if the Opposite Party No.1 comes to a conclusion that the Petitioner stands in similar footing with the above named Persons, the same benefit which have been granted to the similarly situated employees under Annexure-6 to the Writ Petition vide Office Order dated 27.08.2021, be also extended in favour of the present Petitioner, if there is no other legal // 7 // impediment, within a period of two months thereafter. 12. With the aforesaid observation the Writ Petition stands disposed of. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 10-Mar-2024 16:42:23