Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.27906 of 2019 ---- Janaki Ballav Mohanty ..… Petitioner -versus- Principal Secretary to Govt., Department of Water Resources (DOWR), Bhubaneswar & others ….. Opp. Parties W.P.(C) No.18737 of 2019 Niranjan Mohanty ..… Petitioner -versus- Principal Secretary to Govt., Department of Water Resources (DOWR), Bhubaneswar & others ….. Opp. Parties W.P.(C) No.18738 of 2019 Abhimanyu Sasmal ..… Petitioner -versus- Principal Secretary to Govt., Department of Water Resources (DOWR), Bhubaneswar & others ….. Opp. Parties W.P.(C) No.27909 of 2019 Jagadish Chandra Jena ..… Petitioner State of Orissa and others ….. Opp. Parties -versus- For Petitioners (in all Writ Petitions) : Miss. Deepali Mahapatra, Adv. For Opp. Parties (in all Writ Petitions) (Opposite Party-State) : Mr. Saroj Kumar Samal (AGA) Mr. C.A. Rao, Senior Advocate along with Mr. S.K. Behera, Adv. (for Opposite Parties-WALMI CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------------- Date of Hearing:04.07.2023 & Date of Judgment:14.07.2023 --------------------------------------------------------------------------------------- S.K. Mishra, J. As W.P.(C) Nos. 18737, 18738 and 27909, all of 2019, are having identical issue, so also the impugned Orders passed therein being identical to the present Writ Petition, all the matters were heard together and are disposed of vide this common judgment and W.P.(C) No.27906 of 2019 is taken up as lead case. 2. The Petitioner, who was working as a Junior Assistant- Cum-Typist in the office of the Water and Land Management Institute (WALMI), has filed this Writ Petition seeking direction to the Opposite Parties to pay his salary w.e.f. 01.05.2018 to W.P.(C) No.27906 of 2019 Page 2 of 25 26.10.2018 and to quash the letter dated 18.03.2019 under Annexure-8. 3. The factual matrix of the case, in nutshell, is that the Petitioner was appointed as Junior Assistant-Cum-Typist under the WALMI vide office order dated 01.12.1989, pursuant to which he joined on 13.12.1989. After completion of 6 years, he was given promotion to the rank of Senior Assistant vide office order dated 15.03.1995 .He served in the said post for more than 23 years without any complaint from any quarter. 4. While the matter stood thus, by virtue of the Resolution dated 28.06.2014, the State Government enhanced the age of superannuation from 58 to 60 years. However, the WALMI, though a Government of Odisha Undertaking, did not implement the said Resolution of the Government. The Petitioner, before attaining the age of superannuation i.e. 58 years, was served with a notice of superannuation vide letter dated 21.04.2018. It is stated that before service of said notice,
Legal Reasoning
the Petitioner approached this Court in W.P.(C) No.2577 of 2018 praying therein to enhance his age of superannuation from 58 to 60 years. The said Writ Petition along with similar Writ
Decision
Petitions i.e. W.P.(C) Nos.3539 & 3540 of 2018, were disposed of W.P.(C) No.27906 of 2019 Page 3 of 25 by this Court vide a common order dated 19.04.2018 with the following observation: “ W.P.(C) Nos.3539, 2577 & 3540 of 2018 Heard Mr. Nirmal Kishore Rath & Mr. Asim Amitabh Dash, learned counsels appearing for the petitioners and Mr. B.P. Tripathy, learned Additional Government Advocate appearing for the State- opposite parties and Mr. C.A. Rao, learned counsel appearing for the Water and Land Management Institute (WALMI). The grievance raised in this writ petition is that the petitioners who are the employees of Water and Land Management Institute (WALMI) which is under the Department of Water and Resources and the service of related superannuation was/is 58 years, but the State of Resolution dated Government by 28.06.2014 has taken decision to enhance the age of superannuation from 58 to 60 years. conditions virtue age the to The grievance of the petitioners is that although the State Government has enhanced the age of superannuation from the age 58 years to 60 years, but the said benefit has not been extended in their favour, even though the similar nature of grievance, this Court has adjudicated the issue in the case of Premalata Panda v. State of Odisha and another, 2015(II) OLR 214. Learned counsels appearing for the petitioners submit that the matter requires consideration in the light of the judgment rendered in the case of Premalata Panda (supra). They further submit that in the case of WALMI also one Sri Dhaneswar Sethi has approached this Court by filing a writ petition being W.P.(C) No.5423 of 2015 and this Court, while disposing of that writ petition, has remitted the matter to consider the case of the petitioners to take decision in the light of the case of Premalata Panda (supra) and as such, they submit that the W.P.(C) No.27906 of 2019 Page 4 of 25 matter of the petitioners is also required to be considered, taking into consideration the fact that some of the petitioners are to attain the age of superannuation i.e. the age of 58 years on 30.04.2018. Mr. Rao, learned counsel appearing for the opposite party-WALMI, however, has disputed the contention of the petitioners by submitting that the judgment rendered in the case of Premalata Panda (supra) on fact is distinguishable. However, he submits that the case of Sri Dhaneswar Sethi is now being considered but decision has not yet been taken. learned Tripathy, Mr. B.P. Additional Government Advocate appearing for the State- opposite parties, however, submits that so far as the Government Resolution is concerned, it is not in dispute, but so far as the claim of the petitioner, it is to be decided by the opposite party-WALMI. 28.6.2014 dated Heard the learned counsel for the parties and on their rival submissions, it is evident that the issue raised in these cases are for enhancement of age of superannuation from 58 years to 60 years by the employees who are working under WALMI, in the light of the Government Resolution dated 28.6.2014. The petitioners have put reliance upon the judgment in the case of Premalata Panda (supra) as also in the case of Sri Dhaneswar Sethi v. State of Odisha and others in W.P.(C) No.5423 of 2015. This Court, without making any comment on the merit of the claim of the petitioners, is of the view that since this Court has already passed order in the case of Sri Dhaneswar Sethi in W.P.(C) No.5423 and whereunder this Court has directed the opposite party-WALMI to take decision within a stipulated time on its own merit, however Mr. Rao has prayed for adjournment for filing counter affidavit, but this Court thinks that since the opposite parties are to take decision in the light of the orders already passed as above, as such, this Court thinks it of 2015 whereby W.P.(C) No.27906 of 2019 Page 5 of 25 proper to dispose of the writ petition directing the opposite party-WALMI to decide the claim of the petitioners on its own merit by taking decision within three weeks from the date of receipt of certified copy of this order.” (Emphasis supplied) 5. It has been averred that in spite of order of this Court in the aforesaid writ petitions, the Opposite Parties superannuated the Petitioner w.e.f. 30.04.2018 for which he initiated contempt proceeding, which was registered as CONTC No.1111 of 2018. It was disposed of on 26.07.2018 with a direction to the Opposite Parties to comply the Order dated 19.04.2018 passed in the said W.P.(C) Nos.2577, 3539 and 3540 of 2018. It is further averred that before disposal of the Contempt Petition, the Opposite Party No.1 directed Opposite Party No.3 to submit the financial implication relating to enhancement of age of superannuation. Thereafter, the Opposite Party No.3 vide letter dated 27.10.2018 enhanced the age of Petitioner from 58 to 60 years. Accordingly, the Petitioner joined in his duty on 27.10.2018 and was getting his salary regularly. But, the Opposite Parties have not paid his salary w.e.f. 01.05.2018 to 26.10.2018. Due to non-payment of salary for the aforesaid period, the Petitioner made a representation on 01.01.2019 to the authority to pay his salary w.e.f. 01.05.2018 to 26.10.2018. On receipt of the W.P.(C) No.27906 of 2019 Page 6 of 25 representation, the Opposite Party No.1, vide letter dated 18.03.2019, rejected the same treating the said period of the Petitioner as ‘no work no pay’. It is further stated that the Petitioner along with similarly placed four persons again represented through Opposite Party No.3 to the Opposite Party No.1, reiterating the same plea, which was taken earlier in his representation to pay the salary for the said period. 6. On being noticed, the Opposite Party Nos. 2 and 3 (WALMI) have filed a detailed Counter Affidavit taking a stand therein that the superannuation age of the Petitioner has been enhanced from 58 to 60 years with immediate effect vide WALMI office order dated 27.10.2018 and the Petitioner joined in service on 27.10.2018. The period of absence from duty of the Petitioner along with similarly situated employees of WALMI has been treated as ‘no work no pay’ in terms of Department of Water Resources letter dated 18.03.2019. 7. Though in addition to the prayer for payment of salary of the Petitioner w.e.f. 01.05.2018 to 26.10.2018, a prayer has been made to quash the letter dated 18.03.2019 (Annexure-8) of the Under Secretary to Government, Government of Odisha, Department of Water Resources, Bhubaneswar, vide which it W.P.(C) No.27906 of 2019 Page 7 of 25 was communicated to the Director, WALMI, Cuttack to treat the said period of Petitioner as “no work no pay”, no Counter Affidavit has been filed by the State-Opposite Party No.1 to justify the said communication/decision. 8. Miss. Mahapatra, learned Counsel for the Petitioner submitted that in view of the ruling of the Apex Court in State of Uttar Pradesh v. Dayanand Chakrawarty and others, reported in AIR 2013 SC 3066, the principle of ‘no work no pay’ is not applicable to the Petitioner, who is guided by specific rules like leave rules etc, relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rules relating to absence from duty. She further submitted that if an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of ‘no work no work’ will not be applicable to such employee. To substantiate her argument, Miss. Mahapatra further relied upon the judgment of this Court in case of Premalata Panda v. State of Odisha and others, reported in 2015 (II) OLR 214. W.P.(C) No.27906 of 2019 Page 8 of 25 9. Mr. Rao, learned Senior Advocate for the WALMI submitted that vide letter dated 18.03.2019, the Government instructed WALMI authority to the effect that the entitlement for the relevant period of absence in favour of the Petitioner along with four other employees be worked out notionally and salary be paid to them accordingly from the date of their joining in service. Mr. Rao further submitted that the Resolution of the Finance Department, as at Annexure-1, with respect to enhancement of retirement age on superannuation of State Government employees is not directly applicable to the employees of WALMI as it is a Society registered under Societies Registration Act, 1860, which is a Grant-In-Aid Institute of Water Resources Department. It was further submitted by Mr. Rao that as per letter dated 18.03.2019 of the Government (Annexure-8), the Petitioner is not entitled for any wages as he has not worked for the said period, which is treated as ‘no work no pay’. To substantiate his argument, Mr. Rao relied on a recent judgment of this Court in Ullash Chandra Khandayatray v. State of Odisha and others (WP(C) No.15225 of 2015, disposed of on 20.09.2022), so also judgment of the Apex Court W.P.(C) No.27906 of 2019 Page 9 of 25 in New Okhla Industrial Development Authority and others v. B.D. Singhal and others, reported in AIR 2021 SC 3457. 10. From the pleadings on record, so also submissions made by the learned Counsel for the Parties, it is to be considered as to whether the principle of ‘no work no pay’ will be applicable to the Petitioner for the period from 01.05.2018 to 26.10.2018 and whether the State-Opposite Party No.1 was justified to issue letter dated 18.03.2019, as at Annexure-8, vide which it was communicated to WALMI authority to treat the said period of the Petitioner as ‘no work no pay’ and it was ordered by State- Opposite Party No.1 to work out the said period of absence notionally and to pay the salary of the Petitioner and similarly placed others accordingly from the date of their rejoining in service. 11. In Premalata Panda (supra), this Court, relying on the judgments of the Apex Court in Dayanand Chakrawarty (supra), Harwindra Kumar v. Chief Engineer, Karmik & others, reported in AIR 2006 SC 365, so also Chairman, Uttar Pradesh Jal Nigam & another v. Radhey Shyam Gautam and another, reported in 2007 (11) SCC 507 and various Orders passed by it, vide Paragraph-16, held as follows: W.P.(C) No.27906 of 2019 Page 10 of 25 “16. Keeping in view the law laid down by the apex Court in Dayanand Chakrawarty (supra), this Court is of the opinion that the following consequential and pecuniary benefits should be allowed to different sets of CDA employees including the Petitioner who were ordered to retire at the age of 58 years and this Court so directs. (a) The employees, who moved the Court of law irrespective of the fact whether interim order was passed in their favour or not, shall be entitled to full salary up to the age of 60 years and arrear salary shall be paid to them after adjusting the amount, if any, paid. (b) The employees, who never moved before any Court of law and had retired on attaining the age of superannuation, shall not be entitled for arrears of salary. However, they will be deemed to be continuing in service up to the age of 60 years. In their case, the CDA shall treat their age of superannuation as 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled to arrears of retirement benefits after adjusting the amount already paid. (c) Needless to say that the arrears of salary and arrears of retirement benefits should be paid to such employees within a period of six months from the date of receipt of copy of the judgment. (d) So far as the petitioner is concerned, since she had approached this Court before completion of 58 years of age and during pendency of the writ petition, she was made to retire on attaining the age of 58 years, this Court directs the opposite party no.2 to bring her back into service forthwith and allow her to continue till she attains the age of 60 years and grant all the consequential service and financial benefits as due and admissible to her in accordance with law.” (Emphasis supplied) Relying on the said judgment of this Court, the Writ Petitions preferred by the present Petitioner and similarly placed W.P.(C) No.27906 of 2019 Page 11 of 25 others were disposed of by this Court on 19.04.2018. A contempt proceeding being initiated based on the said Order of this Court, the Petitioner and similarly placed others were reinstated in service and were permitted to continue in employment till they attained the age of 60 years. 12. Admittedly, the judgment passed in Premalata Panda (supra), has attained finality. As relied upon by the learned Senior Counsel for the WALMI, in Ullash Chandra Khandayatray’s case, the issue before this Court was whether the action of Government of Odisha in Finance Department to enhance the retirement age of State Government employees vide Resolution dated 28.06.2014 ought to have been made applicable retrospectively to the employees of Odisha State Financial Corporation (OSFC), who have already been superannuated. The said judgment was passed relying on the judgment of the Apex Court in New Okhla Industries Development Authority (supra). In the said judgment, the issue before the Apex Court was whether the High Court can give direction to the authority to the effect that decision of the Employer to enhance the age of retirement shall apply retrospectively to the employees, who had already been W.P.(C) No.27906 of 2019 Page 12 of 25 superannuated before the said decision was taken by the Employer. While deciding the said issue, the Apex Court took note of its judgments in Harwindra Kumar (supra) and Chairman, Uttar Pradesh Jal Nigam (supra) and in Paragraph- 25 of the said judgment, it was held as follows: on age attaining “25. The reliance placed by the Respondents on Dayanand Chakrawarthy (supra) to argue that they were willing to work till they attained the age of sixty years but were not permitted to, and thus the principle of ‘no work no pay’ would not be applicable is misplaced. In Dayanand Chakrawarthy, the issue before the two judge Bench of this Court was whether prescription of different ages of retirement based on the mode of Recruitment under the UP Jal Nigam superannuation) (Retirement Regulations, 2005 was unconstitutional for violating Article 14 of the Constitution. This Court held that the differential superannuation age was discriminatory. However, by virtue of Regulation 31 of the UP Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978 the service conditions of State government employees is applicable to the UP Jal Nigam employees. Therefore when the Jal Nigam through an Office memorandum had resolved that the age of retirement for its employees shall be fifty eight years, though it was sixty years for State government employees, it was set aside by this Court in Harwinder Karmik Kumar MANU/SC/2030/2005 In harwinder Kumar and the subsequent cases (U.P. Jal Nigam v. Jaswant Singh MANU/SC/5073/2006 : (2006) 11 SCC 464; U.P. Jal Nigam v. Radhey Shyam Gautam MANU/SC/7258/2007 : (2007) 11 507) involving the age of retirement of the UP Jal Nigam employees, this court had held that employees who had approached the courts shall be entitled to full salary until the age of sixty years. It was in this context that a two judge bench of this Court speaking through Mukhopadhaya made following observation in Dayanand Chakrawarthy: (2005) 13 SCC 300. Chief : Engineer, the v. W.P.(C) No.27906 of 2019 Page 13 of 25 48.……..We observe that the principle of “no pay no work” is not applicable to the employees who were guided by specific Rules like Leave Rules, etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific Rule relating to absence from duty. If an employee is prevented from the performing his duties, the employee cannot be blamed for having not worked, and the principle of “no pay no work” shall not be applicable to such employee. employer by In Dayanand Chakrawarthy the court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because (i) the Office memorandum was held ultra vires; (ii) Harwinder Kumar, Jaswant Singh, and Radhey Shyam Gautam had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a Regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petitions. Therefore, the above observation must be read in the context of the distinct factual situation in the case.” (Emphasis supplied) 13. In Harwindra Kumar (supra), at Paragraphs 9, 10 and 11, the apex Court held as follows: “9. Reference in this connection may be made to a decision of this Court in the case of V.T. Khanzode and others v. Reserve Bank of India and another AIR 1982 SUPREME COURT 917. In that case, under Section 58(1) of the Reserve Bank of India Act, powers were conferred upon the Central Board of Directors of the Bank to make regulations in order to provide for all matters for which provision was necessary or convenient for the purpose of giving effect to the provisions of the Act which section in W.P.(C) No.27906 of 2019 Page 14 of 25 the opinion of their Lordships included the power to frame regulation in relation to service conditions of the bank staff. In that case, instead of framing regulations, the bank issued administrative circulars in relation to service conditions of the staff acting under Section 7(2) of the Reserve Bank of India Act which was a general power conferred upon the bank like Section 15(1) of the present Act. It was laid down that "there is no doubt that a statutory corporation can do only such acts as are authorized by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication." It was further laid down that "so long as staff regulations are not framed under Section 58(1), it is open to the Central Board to issue the service administrative circulars conditions of the staff, in the exercise of power conferred by Section 7(2) of the Act." As in the said case, no regulation was at all framed under Section 58 of the Reserve Bank of India Act, as such, the administrative circulars issued by the Central Board of Directors of the Bank under Section 7(2) of the Reserve Bank of India Act in relation to service conditions were held to be in consonance with law and not invalid. regulating 10. In the present case, as Regulations have been framed by the Nigam specifically enumerating in Regulation 31 thereof that the Rules governing the service conditions of government servants shall equally apply to the employees of the Nigam, it was not possible for the Nigam to take an administrative decision acting under Section 15(1) of the Act pursuant to direction of the State Government in the matter of policy issued under Section 89 of the Act and directing that the enhanced age of superannuation of 60 years applicable to the government servants shall not apply to the employees of the Nigam. In our view, the only option for the Nigam was to make suitable amendment in Regulation 31 with the previous approval of the State Government providing thereunder age of superannuation of its employees to be 58 years, in case, it intended that 60 years which was the enhanced age of W.P.(C) No.27906 of 2019 Page 15 of 25 superannuation of the State Government employees should not be made applicable to employees of the Nigam. It was also not possible for the State Government to give a direction purporting to Act under Section 89 of the Act to the effect that the enhanced age of 60 years would not be applicable to the employees of the Nigam treating the same to be a matter of policy nor it was permissible for the Nigam on the basis of such a direction of the State Government in policy matter of the Nigam to take an administrative decision acting under Section 15(1) of the Act as the same would be inconsistent with Regulation 31 which was framed by the Nigam in the exercise of powers conferred upon it under Section 97(2)(c) of the Act. of government 11. For the foregoing reasons, we are of the view that so long Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However, it would be open to the Nigam with the previous approval of the State Government to make suitable amendment in Regulation 31 and alter service conditions of employees of the Nigam, including their age of superannuation. It is needless to say that if it is so done, the same shall be prospective.” 14. This Court in Premalata Panda (supra), vide Paragraph 8 (Emphasis supplied) held as follows: “8. It appears that the employee of the Greater Cuttack Improvement Trust were transferred to CDA by virtue of Section 128-2(a) of the Development Authority Act, 1982. Greater Cuttack Improvement Trust, in its resolution No11/48, dated 08.02.1971 in Annexure-B/2, resolved as under: W.P.(C) No.27906 of 2019 Page 16 of 25 “Item No.11/48 adoption of Orissa Service code and T.A. Rules govern Trust employees. The Trust adoption the Orissa service Code and T.A. Rules and resolved that the Trust employees shall be governed by the provisions of the Orissa Service Code and T.A. Rules.” The authority of CDA in its resolution No.4 dated the Government Servant 11.06.1984 adopted Conduct Rule, Orissa Civil Services (Classification, Control and Appeal) Rule and T.A. Rule for the employees of CDA. As per rule-71 of the Orissa Service Code, the retirement age of the employees of the Government excepting Group-D has been fixed at 58 years. In view of such adoption of Orissa Service Code, the petitioner was to retire at the age the Government 58 years. But subsequently, amended that Rule 71(a) by enhancing the age of superannuation of the State Government employees from 58 years to 60 years and consequential resolution was passed vide Annexure-3 dated 28.06.2014, by which benefit of enhancement of age of superannuation from 58 years to 60 years has been granted to the State Government employees. Since CDA has adopted the Orissa Service Code for its employees in absence of Rules framed by it, the enhancement age of superannuation made by the State Authority by virtue of the resolution vide annexure-3 so far it relates to the State Government Employees, is also applicable to the employees of the CDA.” (Emphasis supplied) 15. This Court in Premalata Panda (supra), relying on the judgments of the Apex Court as detailed above, further held that the employees, who moved the Court of law irrespective of the fact whether interim order was passed in their favour or not, shall be entitled to full salary up to age of 60 years and arrear W.P.(C) No.27906 of 2019 Page 17 of 25 salary shall be paid to them after adjusting the amount, if any, paid. Since the Petitioner had approached this Court before completion of 58 years of age and during pendency of the Writ Petition, she was made to retire on attaining the age of 58 years, the Employer was directed to bring the Petitioner back into service forthwith and allow her to continue till she attains the age of 60 years and grant all the consequential service and financial benefits, as due and admissible to her, in accordance with law. 16. In the present case, the Petitioner and similarly placed others approached this Court before they attained the age of superannuation of 58 years, relying on the judgment in Premalata Panda (supra), so also Order passed in Dhaneswar Sethi in W.P.(C) No.5423 of 2015, with a prayer to extend the benefit of enhancement age of superannuation from 58 to 60 years in terms of the decision of the State Government. Without carrying out the said direction given by this Court in W.P.(C) No.3539 of 2018 and batch, the Petitioner and similarly placed others were superannuated at the age of 58 years . Contempt proceeding being initiated by Petitioner and others, being directed in the said contempt proceeding for compliance of W.P.(C) No.27906 of 2019 Page 18 of 25 Order dated 19.04.2018 passed by this Court in the Writ Petition, vide letter dated 27.10.2018, the age of the Petitioner was enhanced from 58 to 60 years . He joined his duty on the very same day and was allowed to continue till he attained the age of 60 years. However, the salary for the period from 01.05.2018 to 26.10.2018 i.e. the date of alleged retirement till his re-engagement, was not paid to him, which is the subject matter of the present Writ Petition. 17. In view of the facts as detailed above, so also submissions made and the judgments cited by the learned Counsel for the Parties, this Court is of the view that the facts and circumstances of the present case are different from the facts and issue involved in New Okhla Industries Development Authority (supra), based on which a co-ordinate Bench in Ullash Chandra Khandayatray (supra) dismissed the Writ Petition with an observation that the prayer of the Petitioner for retrospective enhancement of age of retirement does not merit consideration. 18. Admittedly, despite direction of this Court in W.P.(C) No.3539 of 2018 and batch to take a decision on the representation of the Petitioners, before taking any decision W.P.(C) No.27906 of 2019 Page 19 of 25 thereon, the present Petitioner was superannuated from service w.e.f. 30.04.2018. However, on being directed by this Court in CONTC No.1111 of 2018 to comply the Order dated 19.04.2018 passed in the Writ Petitions, instead of defending its action in superannuating the Petitioner at the age of 58 years to be legal and justified, with due approval of the State Government, WALMI authority extended the age of superannuation of the Petitioner to 60 years and the Petitioner was reinstated in service on 27.10.2018. From the conduct of the WALMI it can be well construed that as the case of the Petitioner and similarly placed others is squarely covered by judgment of this Court in Premalata Panda (supra), his and similarly placed others age of retirement were extended to 60 years and the Petitioner reported for duty on 27.10.2018. 19. As there is no such specific averment in the Writ Petition, so also in the Counter Affidavit filed by WALMI, a query being made, learned Counsel for the Petitioner, so also Counsel for WALMI fairly submitted that there is no such specific approved Service Rules of WALMI governing the service conditions of its employees, including Rules regarding age of superannuation. Learned Counsel for the WALMI further submitted that by virtue W.P.(C) No.27906 of 2019 Page 20 of 25 of Governing Council’s Resolution, the Odisha Service Code has been adopted and is made applicable to employee of WALMI. 20. Despite such submission made by the learned Counsel for the Parties, on being directed, both the learned Counsel for the Petitioner so also the Deputy Director, WALMI, being physically present before this Court on 04.07.2023, filed their respective documents, such as Bye-laws of WALMI, Proceeding of the 21st Governing Council Meeting of WALMI and the draft “The Water And Land Management Institute Odisha Employees Service Rules, 2018.” Item No.19 of the said Proceeding of 21st Governing Council Meeting of WALMI held on 20.07.1994 in the office chamber of the Commissioner-Cum-Secretary to Government, Department of Water Resources, Orissa, Bhubaneswar, being germane to the present lis, is extracted below: Item.19 : Applicability of Orissa service Code. T.A. Rules, circulars, orders etc. of Govt. of Orissa to WALMI, Orissa. It has been approved that till finalization of own service rules of WALMI, which is under preparation by Sri R.C. Das, Ex- Addl. Secretary to Govt., Deptt. of Revenue, the Orissa Service Code, T.A. Rules, Govt. Servant Conduct Rules and other Rules, Circulars, orders etc. of Govt. of Orissa as W.P.(C) No.27906 of 2019 Page 21 of 25 issued and amended from time to time any be made applicable mutatis mutandis in WALMI, Orissa. However, Director, WALMI should expedite the preparation of own service rules by Sri Das, Ex. Addl. Secy. and put up the same for approval of the President, WALMI.” As to the Draft Service Rules, 2018, the Sub-Rule (5) in Rule 1 prescribes that the said Rules shall come into force on such date as the Government may, by order specify. Sub-Rule (5) in Rule 1 of the said Rules, 2018 is extracted below: “(5) They shall come into force on such date as (with effect from the date of their publication in Odisha Gazette after the approval of the Governing Council and Government) the Government may, by order specify. Similarly, Rule 18 of the said proposal Rules, 2018, which is pertaining to age of superannuation of employees of WALMI, is reproduced below: “18. Age of Superannuation of employees of WALMI (1) The age of superannuation of all employees of WALMI shall be 60 years or as amended by the Government of Odisha from time to time. (2) An employee shall retire on the last day of the month in which he or she completes the age of superannuation. But whose date of birth is first day of the month shall retire from service in the afternoon of the last day of the preceding month.” (Emphasis supplied) W.P.(C) No.27906 of 2019 Page 22 of 25 21. The Officer of WALMI, being present before this Court, filed various documents on 04.07.2023, including photocopy of the Proceedings of the 39th Governing Council Meeting of WALMI. Agenda No.7 of the said Proceedings of Governing Council Meeting of WALMI, being germane to the present issue, is extracted below: “AGENDA NO.-07 Implementation of Superannuation age to 60 years instead of 58 years in respect of WALMI Employees. (A) Govt. in DoWR have been pleased to enhance the superannuation age from 58 years to 60 years for the petitioners like Sri Niranjana Mohanty, VAW, Sri J.B. Mohanty, Sr. Asst. Sri J.C. Jena, Dispatcher, Sri U.C. Rath, Laboratory Attendant & Sri A. Sasmal, Jr. Clerk of WALMI based on the orders of the Hon’ble High Court of Orissa and further suggested to place the matter before the G.C. for approval. The enhancement of superannuation age from 58 years to 60 years was approved by the G.C. for the 5 nos. of employees as stated above in (A) with necessary deployment for effective utilization of their services.” 22. Admittedly, in terms of Sub-Rule (5) in Rule 1 of the said Rules, 2018, the proposed “Water and Land Management Institute Odisha Employee’s Service Rules, 2018” is yet to come into force as is yet to be approved by the Governing Council and the Government, followed by publication in the Gazette. Hence, this Court is of the view that in terms of Item No.19 of the Proceeding of 21st Governing Council Meeting of WALMI dated W.P.(C) No.27906 of 2019 Page 23 of 25 20.07.1994, as extracted above, till coming into force of proposed Employees’ Service Rules - 2018, the Orissa Service Code, T.A. Rules, Government Servant Conduct Rules and other Rules, Circulars, orders etc. of Government of Orissa, as issued and amended from time to time, shall be made applicable mutatis mutandis in WALMI, Orissa, including the age of superannuation and the case of the Petitioner and similarly placed others are squarely covered by the judgment of this Court in Premalata Panda (supra), which is based on the judgments of the Apex Court. 23. This Court is of further view that the judgments cited by the learned Senior Counsel for the Opposite Party Nos. 2 and 3 (WALMI) are not applicable to the facts and circumstances of the present case. Rather, the judgments of the Apex Court in Harwindra Kumar (supra), Dayanand Chakrawarty (supra), Chairman, Uttar Pradesh Jal Nigam & another (supra), so also judgment of this Court in Premalata Panda (supra) are squarely applicable to the case of the Petitioner and he is entitled to salary for the period from 01.05.2018 to 26.10.2018, as prayed for and the principle of “no work no pay” is not applicable to the case of the Petitioner. W.P.(C) No.27906 of 2019 Page 24 of 25 24. Further, this Court is of the view that the communication made by the State Opposite Party No.1 vide letter dated 18.03.2019 (Annexure-8), being without any basis and cogent reason , contrary to the judgment of the Apex Court, so also this Court, is liable to be set aside. Accordingly, the same is set aside. 25. The W.P.(C) Nos.18737, 18738 and 27909, all of 2019, being identical to W.P.(C) No.27906 of 2019 with identical prayer, the impugned Order/letter dated 18.03.2019 in all the connected Writ Petitions are accordingly set aside. 26. In view of the above, the Opposite Parties, more particularly Opposite Party Nos. 2 and 3, are directed to pay the salary of all the Petitioners, as due and admissible, for the period as prayed for, within a period of four weeks from the date of communication of certified copy of this judgment. 27. Accordingly, all the Writ Petitions stand disposed of, with the above direction. No order as to costs. Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Secretary In-Charge Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Jul-2023 20:20:51 Orissa High Court, Cuttack Dated, 14th July, 2023/PCD JUDGE (S.K. MISHRA) W.P.(C) No.27906 of 2019 Page 25 of 25