The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29125 of 2022 An application under Articles 226 and 227 of the Constitution of India. Banshidhar Behera . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. W.P.(C) No.29128 of 2022 Abhinna Kumar Parija . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. W.P.(C) No.29130 of 2022 Khali Gauda . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. // 2 // W.P.(C) No.29132 of 2022 Hari Barik . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. W.P.(C) No.29134 of 2022 Bhimsen Mohapatra . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. W.P.(C) No.29136 of 2022 Chintamani Sahoo . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. W.P.(C) No.29140 of 2022 Pramod Kumar Khuntia
Legal Reasoning
. Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. // 3 // W.P.(C) No.30001 of 2022 Ullas Lenka . Petitioner Mr. S. Patra, Advocate -versus- State of Odisha & others . Opp. Parties Mr. B.P. Tripathy, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 15.11.2022 | Date of Judgment : 02.11.2023 ______________________________________________________ A.K. Mohapatra, J. : 01. All the above noted writ applications have been filed with a common prayer to quash the order of rejection of their prayer by the Opposite Parties i.e. the order dated 22.02.2022 under Annexure-6 to W.P.(C) No.29125 of 2022 and further for a direction to the Opposite Parties by issuing a writ of mandamus to allow pensionary benefits to the Petitioners after regularizing their service upon completion of five years of service in the work charged establishment or in the alternative to at least regularizing their service for a day prior to the retirement and on such basis treating the Petitioner as regular employee and further to grant all consequential benefits including pensionary benefits along with interest @ of 12% on such arrear dues. It is relevant to mention // 4 // here that all the above noted writ applications involved a common question of law and an identical prayer which is based on similar set of facts. In view of the aforesaid factual background, this Court deems it proper to take up all the matters together for hearing and the above noted batch of writ applications are being
Decision
disposed of by the following common order. 02. For the sake of brevity and convenience the facts involved in the W.P.(C) No.29125 of 2022 are being taken up for analysis and discussion. One Banshidhar Behera-Petitioner in W.P.(C) No.29125 of 2022 was duly selected and appointed on 22.12.1980 in the Fitter Grade-IV under work charged establishment pursuant to order dated 19.12.1980 issued by the Superintending Engineer, Rengali Dam Circle. Since the date of joining, the Petitioner has been discharging his duties sincerely to the satisfaction of the higher authorities. During his service career the Petitioner had worked under different divisions and while working under Opposite Party No.4 the Petitioner has retired from service with effect from 28.02.2005 on attaining the age of superannuation. 03. In the year 2001, the Petitioner came to know about the fact that similarly situated work charged employees have been brought over to the regular establishment in view of the Finance Department Resolution dtd.22.01.1964 and 06.03.1990. // 5 // Accordingly, the Petitioner along with 33 others approached the learned Odisha Administrative Tribunal by filing O.A. No.2422(C) of 2001 with a prayer for a direction to regularize the service of the Petitioner with effect from the date on which they have completed five years of services and for a further direction that entire service period be taken into consideration for the purpose of granting pension/ pensionary benefits. While this was the position, pursuant to the direction of the Hon’ble Supreme Court, the Finance Department issued another circular on 15.05.1997 to bring over the NMRs, DLRs employees to regular establishment wherein it has stipulated to give preference to employees under work charged establishment on the basis of their seniority according to their respective date of joining in service. 04. In the writ petition, it has also been pleaded that vide order dated 27.05.2014 & 26.06.2014, 569 work charged employees were brought over to the regular (wages) establishment against created post. Pursuant to the aforesaid order some of the juniors to the Petitioner have been brought over to the regular wages establishment without considering the case of the Petitioners for regularization of their service. Some of the employees whose services were regularized and they had approached the Tribunal along with the Petitioners had subsequently withdrawn their cases before the Tribunal. Although // 6 // the Petitioner has retired from service long since and he has been staying in Sorada under Ganjam district and he had no knowledge about the aforesaid developments. When he came to know about the fact that similarly circumstanced persons including the juniors to the Petitioners have been regularized in service and are getting pensionary benefits, only then the Petitioner enquired about the matter. Finally, on 17.07.2018, the Petitioner submitted a representation before Opposite Party No.1 with a prayer to allow him pension after regularizing his service period in the work charged establishment. Since no action was taken the Petitioner filed O.A. No.2775(C) of 2018 before the learned Odisha Administrative Tribunal for a direction to the Opposite Parties to allow pension and pensionary benefits to the Petitioner after regularizing his service. 05. While this was the position, after abolition of the learned Odisha Administrative Tribunal, the O.A. No.2422(C) of 2001 was transferred to this Court and was renumbered as WPC(OAC) No.2422 of 2001. This Court vide order dated 21.06.2021 was pleased to dispose of the said WPC(OAC) by granting liberty to Petitioner to file a fresh representation before the Competent Authority with a further direction to such authority to consider the case of the Petitioner by taking into account the judgment in Umadevi’s case, M.L. Kesari’s case and Nihal Singh’s case. // 7 // Accordingly, the Petitioner submitted a fresh representation on 02.07.2021 before the Opposite Party No.1 along with a copy of order dated 21.06.2021. 06. Since no action was taken immediately, the Petitioner was compelled to file CONTC No.7636 of 2021 which was disposed of on 06.01.2022 by granting further time to contemnor to comply with the direction of this Court. Despite such extension of time, the Opposite Party No.1 did not act upon the order passed by this Court thereby compelling the Petitioner to file another contempt bearing CONTC No.2918 of 2022, which is stated to be pending before this Court. In the meanwhile, the Opposite Party No.1 vide order dated 22.02.2022 rejected the claim of the Petitioner on some untenable and unreasonable grounds. Being aggrieved by such rejection order dated 22.02.2022 the Petitioner has approached this Court by filing the present writ application. 07. Heard Sri S. Patra, learned counsel appearing for the Petitioner and Sri B.P. Tripathy, learned Additional Government Advocate for the State-Opposite Parties. Perused the writ application and the documents annexed thereto as well as other materials placed before this Court in course of hearing. 08. Mr. Patra, learned counsel appearing for the Petitioner at the outset contended that the Government of Odisha had issued notification/ circular on 22.01.1965 and 06.03.1990 to bring over // 8 // the work charged employees to the regular establishment in order to give them pension/ pensionary benefits. In view of such circulars/ notifications a number of work charged employees pursuant to orders passed by different departments/ authorities under the Government have allowed pension and pensionary benefits to such work charged employees by bringing them over to regular establishment upon their completing five years of service in the work charged establishment. In the aforesaid context, Mr. Patra, learned counsel, referred to the order dated 18.05.1990 passed by the learned Odisha Administrative Tribunal in O.A. No.84/1987 (Mohan Singh & others vs. State of Odisha). 09. In the aforesaid matter the learned Odisha Administrative Tribunal had directed that the Petitioners be absorbed in permanent employeement, if required, by creating posts and that their entire service period should be taken into consideration for the purpose of their service benefits and pension/ pensionary benefits. The aforesaid order of the Tribunal has been affirmed by the Hon’ble Supreme Court in Special Leave to Appeal (Civil) No.12410/1990. 10. Similarly, in O.A. No.2559(C)/1999 i.e. in Kashidev Maharana & a batch of similar other matters were disposed of by the Tribunal on 16.11.1999 with a direction to the Opposite Parties to absorb the applicants in the regular post with effect // 9 // from the date they have completed five years of continuous service. The aforesaid order of the Tribunal was challenged in a review which was dismissed on 13.07.2015. Thereafter, the State- Opposite Parties challenged the order dated 16.11.1999 in W.P.(C) No.7246 of 2016 which was dismissed on 08.07.2018. Thereafter, the State-Opposite Parties preferred a SLP bearing SLP Diary No.23207 of 2018. The Hon’ble Supreme Court has also been pleased to dismiss the SLP. 11. After dismissal of the SLP filed by the State, the State- Opposite Parties have carried out the order passed by the Tribunal vide their order dated 24.08.2021, 26.08.2021 and 27.08.2021 under Annexure-7 series to the writ application. In total 19 number of work charged employees including the retrenched employees were brought over to the regular establishment and extended with the pensionary benefits. He further contended that this Court also took up another similar case in W.P.(C) No.21585 of 2014 and finally disposed of the said case in the light of decision rendered in Kashidev Maharana’s case (supra) which was confirmed by the Hon’ble Supreme Court in SLP (C) Diary No.10145 of 2023 disposed of on 05.04.2023. 12. In the aforesaid factual background and further referring to various orders passed by different courts/ Tribunal and that of the Hon’ble Supreme Court of India, learned counsel for the // 10 // Petitioner submitted that the Petitioner also stands in a similar footing with the persons who have been extended with similar benefits pursuant to the order passed by the Tribunal, this Court as well as the Hon’ble Apex Court. He further contended that some of the employees who have been regularized and have been given the pensionary benefits are juniors to the Petitioner. Therefore, it was alleged that the conduct of the State-Opposite Parties are in gross violation of Article-14 and 16 of the Constitution of India. As the Opposite Parties have adopted a pick and choose method and treated the present Petitioner in an arbitrary and discriminatory manner. Such conduct of the Opposite Parties violates the Petitioner’s fundamental right to equal treatment and therefore, the same is unsustainable in law. 13. In course of his argument, Mr. Patra, learned counsel appearing for the Petitioner referred to the decision of this Court in State of Odisha vs. Pitambar Sahoo in W.P.(C) No.24041 of 2017 disposed of on 20.12.2017 which was confirmed by the Hon’ble Supreme Court in SLP (C) Diary No.30806 of 2018. He also referred to the case in Chandra Nandi vs. State of Odisha and others in W.P.(C) No.19950 of 2011 decided on 03.02.2021. In Premananda Tripathy vs. State of Odisha in W.P.(C) No.27950 of 2019 decided on 03.02.2021, this Court had taken a similar view. // 11 // 14. Further, referring to the case of Narasu Pradhan vs. State of Odisha in O.A. No.1189 (C)/2006 disposed of on 11.04.2009, learned counsel for the Petitioner submitted that the order of the Tribunal was affirmed by a Division Bench of this Court in W.P.(C) No.5377 of 2010 vide order dated 19.10.2011. The Division Bench of this Court in Narusu Pradhan’s case directed the Government to regularize the service of the Petitioner at least one day before his retirement and to grant pensionary benefits. The order passed in Narusu Pradhan’s case has also been affirmed by the Hon’ble Supreme Court in Civil Appeal (C.C.) No.22498 of 2012. 15. He further contended that this Court after taking into consideration a number of orders passed by this Court as well as the Hon’ble Supreme Court vide order dated 24.02.2022 in W.P.(C) No.5570 of 2023 (Narayan Swain vs. State of Odisha & others) allowed the writ petition and directed to grant similar benefits as has been done in the case of Narasu Pradhan. Further, the attention of this Court was also drawn to the case in Jageswar Mahanta vs. State of Odisha (W.P.(C) No.36686 of 2021) and batch of other cases. Wherein the hearing is concluded and judgment is yet to be delivered. Accordingly, learned counsel for the Petitioner submitted that the present case be taken up along with pending batch of matters. // 12 // 16. While countering the impugned rejection order, learned counsel for the Petitioner contended that the Opposite Party No.1 by misinterpreting the judgment of the Hon’ble Supreme Court in State of Karnataka vs. Uma Devi reported in 2006 (4) SCC 1 and without taking note of the other two judgments as directed by this Court in the earlier writ petition, refused to grant the relief claimed by the Petitioner and accordingly in an illegal and arbitrary manner rejected the claim of the Petitioner. Therefore, it was also contended that the case of the Petitioner has not been considered in the right perspective and by taking into consideration the above noted facts and the ratio laid down by this Court as well as the Hon’ble Apex Court. In such view of the matter, learned counsel for the Petitioner submitted that the impugned rejection order is not inconformity with the direction issued by this Court in the earlier round of writ application, moreover, the same is also contrary to the ratio laid down by this Court as well as the Hon’ble Apex Court in identical matters. 17. He also contended that the State-Opposite parties having accepted the legal position and the ratio laid down by this Court as well as the Hon’ble Apex Court and after implementing such orders and accordingly giving such benefits to similarly situated persons, are legally estopped to take a different stand in the case of the present Petitioners. Mr. Patra, learned counsel would // 13 // further argue that the State being a model employer is expected to act in a fair, reasonable and transparent manner and the authorities are expected to maintain parity at all time while dealing with similarly situated Government employees. However, such well recognized principle of law has not been adhered to by the State- authorities. The Opposite Party No.1 contrary to the settled position of law and the ratio laid down by the above noted judgments has arbitrarily rejected the representation of the Petitioner without considering the same in its perspective and thereby refusing to extend similar benefits which have been extended in favour of the similarly situated persons. Thus, such conduct is grossly violating of Article-14 and 16 of the Constitution of India and as a result of which the impugned rejection order is liable to be quashed and the present writ application deserves to be allowed with a direction to the Opposite Parties to extend similar benefits to the Petitioner. 18. In course of his argument, Mr. Patra, learned counsel also referred to the judgments in State of Karnataka and others vs. M. L. Kesari & ors. reported in AIR 2010 SC 2587, in Nihal Singh vs. State of Punjab reported in 2013 AIR SCW 4919, in Malathi Das vs. Suresh & others reported in 2014 (13) SCC 249, in Yashwant Arjun More & others vs. State of Maharashtra & others reported in 2014 (13) SCC 264, in Amar Kant Ray vs. // 14 // State of Bihar & others reported in 2015 (8) SCC 265, in Narendra Kumar Tiwari vs. State of Jharkhand reported in (2018) 8 SCC 238, in Sunil Kumar Verma & others vs. State of Uttar Pradesh & others reported in 2016 (1) SCC 397. This Court considered all the aforesaid judgments. The legal proposition pronounced by the Hon’ble Supreme court in the above noted judgments are too well known, therefore, the same does not required any further elaboration at this stage. However, it is made clear that this Court has taken note of the law laid down by the Hon’ble Supreme Court in the above noted judgments while considering the present batch of writ application. 19. Mr. B.P. Tripathy, learned Additional Government Advocate, on the other hand tried to justify the impugned order dated 22.02.2022 under Annexure-6 to the writ application. He further contended that pursuant to the order passed by this Court earlier the case of the Petitioner was considered by the Opposite Party No.1 and by virtue of a reasoned order the claim of the Petitioner was found to be legally unsustainable and accordingly the prayer of the Petitioner for regularization of his service in the regular establishment and sanction of pensionary benefits was also found to be devoid of merit and accordingly the representation was rejected. // 15 // 20. Learned Additional Government Advocate further contended before this Court that the Petitioner was appointed as a Helper in the work charged establishment under the Superintending Engineer, Rengali Dam Circle on 30.11.1978 and subsequently he was promoted to the post of Operator w.e.f. 10.04.1981. Thereafter, on transfer he came under the control of Chief Engineer and Basin Manager, Subaranarekha Irrigation Project w.e.f. 01.11.1981. While working as such the Petitioner has retired from service w.e.f. 28.02.2013 on attaining the age of superannuation. In such view of the matter, learned Additional Government Advocate further contended that all throughout the Petitioner was working in the work charged establishment till he retired from service on attaining the age of superannuation. Since the Petitioner had not been brought over to the regular establishment, therefore the Petitioner cannot be treated as a regular employee in the pensionable establishment and as such he falls outside the purview of pension rules and accordingly he is not entitled to any pensionary benefits. 21. In course of his argument, learned Additional Government Advocate referring to the cases of other petitioners also contended that they were also initially engaged in the work charged establishment and continued as such till they retired from service on their respective date of retirement. He further // 16 // contended that at no point of time they were brought over to the regular establishment. Therefore, the question of regularization of their service, post retirement, does not arise and since they were not working in regular pensionable establishment the question of grant of pensionary benefits also does not arise. He further contended that the Petitioners worked under the work charged establishment and were regulated under the Odisha work charged employees (appointment and conditions of services) instruction- 1974. Although, the Petitioner have prayed for regularization of service on completion of five years as work charged employees, however, their cases cannot be considered for regularization in the regular establishment. 22. Mr. Tripathy, learned Additional Government Advocate in reply to the Finance Department Resolution dated 22.01.1965 submitted before this Court that the principle laid down in the said resolution will not apply to big projects, dams and other construction works, until such projects, dams and construction works are completed and minimum residual staffs necessary for normal functioning of these projects are determined by the competent authority. On the contrary, learned Additional Government Advocate referred to Finance Department Resolution dated 06.03.1990 to submit before this Court that the service of an employee rendered under the work charged establishment, can // 17 // be considered for grant of pensionary benefits only if the employee concerned is brought over to the regular pensionable establishment. In such view of the matter, he also contended that the past service of the Petitioners cannot be taken into consideration for grant of pension/ pensionary benefits. 23. He also submitted that there is no provisions in OCS Pension Rules, 1992 under which the work charged employees are entitled to get pension and pensionary benefits. Since the service rendered by the Petitioners are admittedly under the work charged establishment, which is non-pensionable establishment, the question of granting them pension/ pensionary benefits does not arise at all for consideration. Similarly, referring to the Finance Department Resolution dated 15.05.1997, learned Additional Government Advocate submitted that there are certain conditions which is required to be fulfill before bringing the employees in the work charged establishment to the regular establishment and that the same is not automatic. Since such conditions could not be satisfied the Petitioners have not been brought over to the regular establishment and accordingly, their services have not been regularized. 24. On a careful analysis of the impugned order under Annexure-6 to the writ application, this Court observed that the Opposite Parties have admitted the factual background of the // 18 // case, to the extent that the Petitioners were engaged in the work charged establishment right from the beginning and they were continuing as such till the date of their retirement. Moreover, this Court also observed that in the earlier round of writ application, this Court had given a specific direction to consider the case of the Petitioner in the light of the judgments of the Hon’ble Supreme Court. However, the Opposite Party No.1 has although referred to a judgment in Secretary State of Karnataka vs. Uma Devi’s case (supra), however it appears that the same is completely misunderstood and misinterpreted by the Opposite Party No.1. On the contrary, this Court is of the view that by the time the judgment in Uma Devi’s case (supra) was delivered by the Hon’ble Supreme Court, the Petitioners were eligible to be regularized as a onetime measure as has been directed in para-55 of the said judgment. On a careful reading of the impugned order it appears that the case of the Petitioner has not been considered in the light of the aforesaid observation in Uma Devi’s case (supra). 25. Reverting back to the facts of the present case, this Court observed that since the late 70s or early 80s the Petitioners were engaged in the work charged establishment and as such facts remains unchallenged/ undisputed. Thereafter, the Petitioners continued to render their services in the work charged establishment to the satisfaction of the authorities. Some of them // 19 // were also given promotion in due course. However, working for several decades continuously they were never brought over to the regular establishment for reasons best known to the authorities. If the nature of work which they were performing were regular in nature, which fact is established by the materials on record that the Petitioners continued to discharge their services in the work charged establishment for several decades till their retirement, the Opposite Parties should have considered the case of the Petitioner in the light of the Government Resolution and the services of the Petitioners should have been regularised. 26. It is not the case of the Opposite Parties that the employees who were similarly placed and were engaged in the work charged establishment have not been regularised and they have not been given pensionary benefits. As has been discussed, in the preceding paragraphs, in several cases the Tribunal as well as this Court and the Hon’ble Supreme Court have issued directions to regulaize their service and to pay them the pensionary benefits. Further, on an analysis of the factual background of the present batch of writ application, this Court takes an exception to the conduct of the Opposite Parties in allowing the Petitioners to continue in work charged establishment for more than three decades and finally, after their retirement from service refused to grant them the pensionary // 20 // benefits only on the ground they were not brought over to the regular establishment. In similar type of cases this Court has taken a view that such type of employees be regularised for a day before their retirement and accordingly the pensionary benefits be calculated on that basis and be paid to them. 27. This Court in a recent judgment in Sadananda Setha vs. State of Odisha & others in WPC(OAC) No.865 of 2018 decided on 17.12.2021 was dealing with a case of identical nature. The above named Sadananda Setha was initially engaged as a Khalasi in the work charged establishment on 01.03.1989 and after discharging his duties sincerely for several decades, finally he had retired from service on 30.06.2016. However, due to latches on the part of the authorities, he could not be brought over to the regular establishment. Therefore, he was denied the pensionary benefits. Initially the above named Sadananda Setha approached the Tribunal by filing an O.A. On abolition of the Tribunal the matter was transferred to this Court, this Court by virtue of a detailed judgment dated 17.12.2021 after taking into consideration the judgments delivered in Abhay Chandra Mohanty vs. State of Odisha and Narasu Pradhan vs. State of Odisha as well as Chandra Nandi vs. State of Odisha allowed the writ application. 28. While allowing the above noted writ applications, this Court had also taken note of the resolution of Water Resources // 21 // Department dated 07.09.1995 which provides that on completion of 10 years of service in work charged establishment, the work charged employee is eligible to be brought over to the regular establishment. Since the Petitioner was not brought over to the regular establishment even after completion of 10 years of service in the work charged establishment, this Court finally disposed of the writ application by directing the authorities to grant similar benefits to the Petitioner as has been given in the case of Narasu Pradhan’s case (supra). 29. On a careful analysis of the facts as well as the legal position and after considering the submission made by the learned counsels for both sides, this Court is of the considered view that keeping in view the fact that the Petitioners have worked for several decades in the work charged establishment till they retired from service, it would be utter injustice to them if they are not regularised in service and are not paid the pension and pensionary benefits. In such view of the matter, this Court has no hesitation in allowing the present batch of writ applications and accordingly the same are hereby allowed. The impugned order passed by the Opposite Party No.1, thereby rejecting the respective representation of the petitioners, is hereby quashed. Further, it is directed that the Opposite Party No.1 shall do well to regularise the service of the Petitioners for a day at least i.e. a day before the // 22 // date of their retirement and accordingly, the Petitioners be paid the pensionary benefits as has been given in the case of Narasu Pradhan and similarly situated many other employees within a period of three months from the date of communication of a certified copy of this judgment. Upon such regularisation the Petitioners shall also be entitled to other consequential and service benefits, if any, they are entitled to as per law. 30. With the aforesaid observations/ directions, the batch of writ applications are allowed, however, there shall be no order as to cost. Orissa High Court, Cuttack The 2nd of November, 2023/ Anil. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Nov-2023 16:05:03