The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No. 21588 of 2024, W.P.(C) No. 24094 of 2024, W.P.(C) No. 24095 of 2024, W.P.(C) No. 24103 of 2024, W.P.(C) No. 24216 of 2024, W.P.(C) No. 24240 of 2024, W.P.(C) No. 24256 of 2024, W.P.(C) No. 24424 of 2024, W.P.(C) No. 24441 of 2024 & W.P.(C) Nos. 25918 of 2024 ________________ Applications under Articles 226 and 227 of the Constitution of India. In W.P.(C) No. 21588 of 2024 --------------------- Ashok Kumar Mohanty and others …. Petitioners Mr.S.K. Ojha, Advocate -versus- President, National Water Development Agency, Ministry of Jalshakti, Government of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. Alok Kumar Mohanty, CGC In W.P.(C) No. 24094 of 2024 Radhu Charan Behura …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. Manoj Kumar Pati, CGC Page 1 of 21 In W.P.(C) No. 24095 of 2024 Surendra Nath Gouda …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. D. Gochhayat, CGC In W.P.(C) No. 24103 of 2024 Kailash Chandra Samal …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. Biswajit Maharana, CGC In W.P.(C) No. 24216 of 2024 Jugal Kishore Muduli …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties
Legal Reasoning
Mr. P.K. Parhi, DSGI along with Mr. D. Gochhayat, CGC In W.P.(C) No. 24240 of 2024 Sk.Arif Hussain …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Page 2 of 21 Mr. P.K. Parhi, DSGI along with Mr. B.K.Pardhi, CGC In W.P.(C) No. 24256 of 2024 Ramanath Panda …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. M.K. Pradhan, CGC In W.P.(C) No. 24424 of 2024 Udaya Kumar Rath …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Ms. S.Patro, CGC In W.P.(C) No. 24441 of 2024 Madan Mohan Dhal …. Petitioner Mr.S.K. Ojha, Advocate -versus- Union of India and others …. Opp. Parties Mr. P.K. Parhi, DSGI along with Mr. M.K. Pati, CGC In W.P.(C) No. 25918 of 2024 Ananta Prasad Patra …. Petitioner Mr.S.K. Ojha, Advocate Page 3 of 21 Union of India and others …. Opp. Parties -versus- Mr. P.K. Parhi, DSGI along with Ms. S.Patro, CGC P R E S E N T: --------------------- THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------- Date of Hearing & Judgment: 13.01.2025 --------------------------------------------------------------------------------------- BY THE BENCH Since common questions of law and fact are involved in all these writ petitions and one common impugned order has been challenged by the petitioners in these writ petitions, with the consent of the learned counsel for the respective parties,
Decision
they are heard together and disposed of by this common order. 2. The petitioners, who are the retired employees of National Water Development Agency have filed these writ petitions challenging the common order dated 24.07.2024 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.50 of 2021, O.A. No. 215 of 2023, O.A. No.194 of 2024, O.A. No. 610 of 2022, O.A. No.608 of 2022, O.A. No.613 of 2022, O.A. No. 213 of 2023, O.A. No.25 of 2024, O.A. No. 413 of 2024 and O.A. No. 612 of 2022 under Annexure-1, whereby Page 4 of 21 the learned Tribunal has been pleased to dismiss the Original Applications. 3. The short fact of the case is that in the year 1982 as a matter of Policy, the Government of India set up National Water Development Agency (in short, ‘NWDA’) under the Ministry of Jalshakti, Government of India, Department of Water Resources, River Development and Ganga Rejuvenation, as an autonomous society registered under the Societies Registration Act, 1860. The basic ground for creation of NWDA is to carry out detailed studies, surveys investigations etc. of peninsular Component and Himalayan Component for water resources development and linking of rivers. The NWDA is fully owned and financed by the Government of India and the Rules/regulations framed by Government of India are mutatis and mutandis applicable to the employees of the NWDA. The petitioners were the retired employees of NWDA, which was established as a Society in July 1982 and was registered under the Societies Registration Act, 1860 and functioning under the administrative control of Ministry of Water Resources to carry out detailed studies, surveys and investigations in respect of Peninsular Component of National Perspective for Water Resources Development. For proper discharge of its day-to-day functions/smooth running, NWDA framed rules and regulations known as “Bye-laws of the National Page 5 of 21 Water Development Agency”. The grievance of the petitioners was that the Govt. of India, Ministry of Personnel, Public Grievances and Pension, Dept. of Pension and Pensioners' Welfare, New Delhi issued Office Memorandum No. 4/1/87PIC-I dated 01.05.1987 for changeover of the Central Government employees from the Contributory Provident Fund Scheme (CPF) to Pension Scheme-Implementation of the recommendations of the fourth Central Pay Commission. In the said Office Memorandum, it was specifically stated that if no option is received by the date so fixed, specifically requesting to continue under the CPF Scheme, the employees concerned will be deemed to have come over to Pension Scheme. In the said Office Memorandum, it was specifically stated that if no option is received by the date so fixed, specifically requesting to continue under the CPF Scheme, the employees concerned will be deemed to have come over to Pension Scheme. Further, it has been also indicated that in the event any organization framed their own CPF Rules for their employees, they will be governed under such rules. It is stated that all the petitioners were the beneficiaries of CPF. As per Rule-28 of the Bye-Law framed by the NWDA, all the OMs/Circulars/Orders issued by the Govt. of India from time to time are mutatis mutandis applicable to the employees of the NWDA as long as no specific regulation has been framed Page 6 of 21 regulating the service conditions, pay and allowances of employees of NWDA. Therefore, the petitioners ought to have been treated to have switched over to the Pension Scheme and, upon their retirement, they should have been paid pension and pensionary benefits instead of the benefits flowing from CPF. Hence, the petitioners have filed the aforesaid Original Applications before the learned Tribunal praying for direction to the respondents to treat them as employees under Pension Rules, 1972 in terms of the Office Memorandum dated 01.05.1987 and grant them pension and pensionary benefits with arrears and interest thereon. 4. The Opposite Parties appeared in the said Original Application and filed their counter affidavit wherein it is stated that the NWDA is a society established in the year 1982 and registered under the Societies Registration Act, 1860. For proper discharge of its day-to-day functions/smooth running, NWDA framed rules and regulations known as Bye-laws of the National Water Development Agency. Bye-Law 26(a) of NWDA, inter-alia, stipulates that the emoluments structure i.e. pay scales, allowances and revision thereof for the employees of NWDA will be adopted with the approval of the Govt. of India in consultation with the Ministry of Finance (Department of Expenditure). Bye- Law 28 of the NWDA states that till such time as the Agency Page 7 of 21 framed its own working rules and regulations governing service conditions of the employees of the Agency, the rules and orders applicable to the Central Government employees shall apply mutatis mutandis to the employees of the Agency subject to such modifications as may be made by the Governing Body from time to time. As per Rule 27 (a), the Governing Body of the NWDA Society shall exercise all executive and financial powers of the Society including those vested in or conferred or to be conferred on it by or under any Statue subject nevertheless in respect of expenditure of such limitations as the Government of India may impose from time to time. 5. It appears that during the hearing of the said Original Application, the learned Tribunal found that similarly placed employees of NWDA approached the learned Central Administrative Tribunal (Principal Bench), New Delhi in O.A. No.2037 of 2008 which was allowed vide order dated 08.02.2010. Challenging the said order, the Government of India approached the High Court of Delhi in Writ Petition No.3197 of 2010 and the High Court of Delhi has been pleased to dispose of the said writ petition holding as follows: “20. The gist of the above discussion is that the impugned judgment and order dated 08.02.2010 passed by the Tribunal is faulty and deserves to be Page 8 of 21 set aside and we do so by formally directing that the impugned judgment and order dated 08.02.2010 allowing the Original Application filed by the respondents is set aside. However, in view of the discussion contained in paragraphs 15 and 16 above, we direct the Ministry of Water Resources to consult the matter of the issuance of an order similar to the Office Memorandum dated 01.05.1987 for the employees of NWDA with the Department of Pensions and Pensioners' Welfare and thereafter take an appropriate decision in said regard within four months from the date of the receipt of the copy of this order. Needless to state, while taking necessary decision, the Ministry of Water Resources and Department of Pensions and Pensioners' Welfare shall examine the concerns raised by the Department of Expenditure, Ministry of Finance in the letter dated 16.03.2000.” 6. It appears that in compliance of the aforesaid order, the Opposite Parties considered the issues relating to grant of pension and pensionary benefit, but the same was rejected vide Office Memorandum dated 24.05.2013. The aggrieved employees of NWDA filed S.L.P.(C) Nos. 3106- 3107 of 2012 and SLP(C) 20425/20426 of 2011 before the Hon’ble Supreme Court, which were dismissed with the following observation: "14. In light of the facts and circumstances of this case and the submissions made by the learned Page 9 of 21 counsel on both sides, it can be concluded that NWDA had framed its regulation the CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. As NWDA is an autonomous body under the Ministry of Water Resources, it has framed it own bye-laws governing the employees. It has been time and again reiterated that the Court must adopt an attitude of total non-interference or minimal interference in the matter of interpretation of Rules framed by autonomous institutions. In Chairman & MD, Kerala SRTC vs. K.O. Varghese and Others, (2007) 0 SCC 231, this Court held: is an autonomous corporation "KSRTC established under the Road Transport Corporation Act, 1950, It can regulate the service of its employees by making appropriate regulations it that behalf. The High Court is not correct in thinking that there is any compulsion on KSRTC on the mere adoption of Part III of KSR to automatically give all enhancements in pension and other benefits given by the State Government to its employees." Thus, as the appellants are governed by the CPF Rules, 1982, the O.M. applicable to Central Government employees is not applicable to them. 15. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the O.M. i.e. 01.05.1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an Page 10 of 21 instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. & Another v. Union of India & Ors., (2005) 4 SCC 649, it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government under sub rule (6) (iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable. " 7. It appears that one of the employees of NWDA, namely, Sri Rohit Kumar Sethi, filed OA No. 4242 of 2018 before learned Central Administrative Tribunal, Principal Bench, New Delhi praying for grant of pension and pensionary benefits. After carefully examining the issues involved in all the cases and the argument placed in support thereof with reference to the Bye law and the order of the Hon’ble Supreme Court in SLP(C) Nos. 3106- 3107 of 2012 and SLP(C) 20425/20426 of 2011, the learned Tribunal came to hold that there are no substantial grounds to defer from the view already taken in the above cases, especially in view of the clear-cut findings of the Hon'ble Apex Court that the employees NWDA are governed by NWDA CPF Page 11 of 21 Rules, 1982 (in short, ‘CPF Rules, 1982’), the Office Memorandum dated 01.05.1987 is not applicable to them and that, the employees of NWDA are not the Central Government employees at par with their counterparts and hence their claim of parity with Central Government Employees is defeated and accordingly dismissed the Original Application. 8. When the matter was first taken up on 11.09.2024, a submission was made on behalf of the learned counsel for the petitioners that though in the decision rendered by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.50 of 2021, it was that the employees of the NWDA are to be governed by CPF Rules, 1982 and not Contributory Provident Fund (India) Rules 1962, but NWDA has not framed any CPF Rules, 1982 and such a rule is not in existence and therefore, the petitioners are to be governed by CPF Rules, 1962 and accordingly, we asked for specific instruction to be obtained as to whether there is any such rules, namely, “National Water Development Agency Contributory Fund Rules, 1982” or not and if it is in existence, produce the copy of the said CPF Rules, 1982. Accordingly, learned Deputy Solicitor General of India has produced before us the aforesaid 1982 Rules. 9. Today, during course of hearing, learned Deputy Solicitor General of India has brought to the notice of this Court the Page 12 of 21 judgment of the Hon’ble Supreme Court of India passed in Civil Appeal Nos.712-713 of 2014, Civil Appeal Nos.714-715 of 2014, Civil Appeal No.716 of 2014, Writ Petition (Civil) No.556 of 2012 and Writ Petition (Civil) No.518 of 2012 wherein in paragraph-14 the Hon’ble Supreme Court has taken note of the CPF Rules, 1982 and has been pleased to hold that it can be concluded that NWDA had framed its regulation CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. As NWDA is an autonomous body under the Ministry of Water Resources, it has framed its own Bye-laws governing the service conditions of its employees. It has been time and again reiterated that the Court must adopt an attitude of total non-interference or minimal interference in the matter of interpretation of Rules framed by autonomous institutions. 10. Therefore, in view of the CPF Rules, 1982 produced before this Court by the learned DSGI so also the observation of the Hon’ble Supreme Court in Civil Appeal Nos.712-713 of 2014, Civil Appeal Nos.714-715 of 2014, Civil Appeal No.716 of 2014, Writ Petition (Civil) No.556 of 2012 and Writ Petition (Civil) No.518 of 2012, we are not inclined to accept the submission made by the learned counsel for the petitioners that NWDA has not framed NWDA CPF Rules, 1982.The clear cut findings of the Hon’ble Supreme Court are that the employees of NWDA are Page 13 of 21 governed by CPF Rules, 1982 and the O.M. dated 01.05.1987 is not applicable to them and that the employees of NWDA are not the Central Government employees, at par with their counter parts and hence, their claim of parity with Central Government employees is defeated. Nothing has been produced before us to take a different view. 11. In the case of The State of Maharashtra and others -Vrs.- Bhagwan and others reported in (2022) 4 Supreme Court Cases 193, the question that cropped up for consideration is whether the employees of WALMI, which is an independent autonomous entity registered under the Societies Registration Act, are entitled to the pensionary benefits at par with the State Government employees. The Hon’ble Supreme Court held as follows: “24. While answering the aforesaid question, few decisions of this Court on the inference of the courts in the policy decision having financial implications and whether the employees of the board/societies, who are autonomous bodies can claim parity in the pay scale and/or other benefits which may be available to the government employees, are required to be considered. 25. In T.M. Sampath v. Ministry of Water Resources [T.M. Sampath v. Ministry of Water Resources, (2015) 5 SCC 333 : (2015) 2 SCC (L&S) 146] , the Page 14 of 21 employees of National Water Development Agency (NWDA), an autonomous body under the aegis and control of the Ministry of Water Resources claimed the pensionary benefits on a par with the Central Government employees. Refusing to allow such pensionary benefits to the employees of NWDA on a par with the Central Government employees, in paras 16 and 17, it was observed and held as under: (SCC pp. 345-46) “16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 1-5-1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] , it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression “State” and each case must be determined on its own merits. Thus, the plea of the employees of Page 15 of 21 NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is “State” under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in State (UT of Chandigarh) v. Krishan Bhandari [State (UT of Chandigarh) v. Krishan Bhandari, (1996) 11 SCC 348 : 1997 SCC (L&S) 391], the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be “Central Government employees” as stated in the OM for its applicability.” 26. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on a par with the government employees. Merely because such Page 16 of 21 autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the autonomous Board/body cannot be put on a par. 27. In Punjab State Coop. Milk Producers Federation Ltd. v. Balbir Kumar Walia [Punjab State Coop. Milk Producers Federation Ltd. v. Balbir Kumar Walia, (2021) 8 SCC 784 : (2021) 2 SCC (L&S) 838] , in para 32, it is observed as under : (SCC p. 805) “32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees Page 17 of 21 stand on different footing than grant of pay scale by an instrumentality of the State.” 28. As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences. 29. In the present case, Walmi being an autonomous body, registered under the Societies Registration Act, the employees of Walmi are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of Walmi has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations, etc.; and the proposal of the then Director of Walmi to extend the pensionary benefits to the employees of Walmi has been specifically turned down by the State Government. Considering the aforesaid facts and Page 18 of 21 circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of Walmi, which is an independent autonomous entity. 30. The observations made by the High Court that as the salary and allowances payable to the employees of Walmi are being paid out of the Consolidated Fund of the State and/or that the Walmi is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. Walmi has to run its administration from its own financial resources. Walmi has no financial powers of imposing any tax like a State and/or the Central Government and Walmi has to depend upon the grants to be made by the State Government. 31. Now, so far as the observations made by the High Court that the amount available with Walmi and deposited with EPF towards the employee's contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of Walmi is concerned, it is to be noted that merely because Walmi has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one- time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a Page 19 of 21 continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, Walmi might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (Walmi) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified. 32. In view of the above discussion and for the reasons stated, the impugned common judgment and order [Sudhakar Namdeo Gaikwad v. State of Maharashtra, 2018 SCC OnLine Bom 21218] passed by the High Court directing the State to extend the pensionary benefits to the employees of Walmi is unsustainable, both in law and on facts. Accordingly, the impugned common judgment and order [Sudhakar Namdeo Gaikwad v. State of Maharashtra, 2018 SCC OnLine Bom 21218] passed by the High Court deserves to be quashed and set aside and is accordingly quashed and set aside. It is held that the employees of Walmi, which is an independent autonomous body registered under the Societies Act are not entitled to the pensionary benefits.” Page 20 of 21 12. In view of the foregoing discussion, we find no infirmity or illegality in the impugned order passed by the learned Central Administrative Tribunal Cuttack Bench, Cuttack under Annexure- 1 warranting our interference in these writ petitions. Accordingly, all these writ petitions stand dismissed. No orders as to costs. , Chittaranjan Dash, J. I Agree Orissa High Court, Cuttack. The 13th January, 2025/PKSahoo ................................. S.K. Sahoo, J. …............................... Chittaranjan Dash, J. Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Jan-2025 13:41:14 Page 21 of 21