The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.38314 of 2021 (This is an application under Article 226 and 227 of the Constitution of India) Bijaya Kumar Nayak …. Petitioner -versus- State of Odisha and others …. Opposite Parties For Petitioner For Opp. Parties : : M/s. Rama Krishan Bisoi, P.K.Dash. Advocate Mr. P.C.Das, Additional Standing Counsel Mr.M.K.Rath, Advocate For Opposite Party No.6 JUDGMENT Date of hearing : 22.08.2023 | Date of Judgment : 22.08.2023 A.K. Mohapatra, J. 1.
Legal Reasoning
Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the pleadings of the respective parties as well as the documents and materials on record. 2. The present Writ Petition has been filed by the Petitioner with a prayer to quash the order under Annexure-7 and further to direct the Opposite Party Nos. 1 & 2 to create a separate post for the Petitioner in order to bring over the Petitioner to regular // 2 // establishment and accordingly grant pension including the pensionary benefit as has been extended to other similarly situated
Decision
persons under Annexure-10 to 12 series of the Writ Petition within a stipulated period of time. 3. The factual background of the case, in short, is that the Petitioner on being selected through a proper recruitment process was appointed as Gate Keeper in a regular scale of pay of Rs.200/- to Rs.280/- and joined in service on 10.04.1980. While working as such, the Petitioner was granted the benefit of pay revision under ORSP Rules, 1998. GPF Account of the Petitioner has also been opened bearing A/C No.13844 FO. It has been alleged in the Writ Petition that although the Petitioner was appointed on regular basis, however, the Opposite Party no.5 treated the Petitioner like a Work Charged employee till the Petitioner retired from service on 30.04.2018. 4. After retiring from service on 30.04.2018 on attaining the age of superannuation, since the Petitioner did not get his retirement benefit as well as pensionary benefit, the Petitioner approached the Opposite Parties by ventilating his grievance in shape of a representation before the Opposite Party no.1 on 16.08.2018 with a further prayer to treat him as regular Class IV employee and accordingly to grant the consequential financial benefit. Since no action was taken by Opposite Party No.1, the Petitioner initially approached this Court by filing W.P.(C) No.23931 of 2019 . A coordinate Bench of this Court vide order dated 04.12.2019 disposed of the aforesaid Writ Petition with a direction to the Opposite Party no.5 to look into the request of the Petitioner and pass appropriate order on the representation of the Petitioner within two months. It // 3 // further appears that the representation of the Petitioner was rejected by the Finance Department, Opposite Party no.2 and accordingly such rejection order was forwarded to the Administrative department. 5. Mr. Bisoi, learned counsel appearing for the Petitioner at the outset submitted that similarly situated employees have been extended with the benefit of regularization of their services for a day and accordingly they have been treated as regular employee and as such have been extended with the minimum pensionary benefit. He further contended that the aforesaid similarly situated persons approached the Tribunal by filing O.A.Nos.744, 728, 745 of 2012 and O.A.No. 727 of 2008 with a prayer to regularize their services against Class-IV post prior to their retirement and accordingly sanction the pensionary benefit. Learned Orissa Administrative Tribunal vide order dated 17.06.2014 allowed the above noted Original Applications with a direction to the Opposite Parties to treat the Petitioner as regular Class-IV employees and allow them all financial and consequential benefits. 6. Challenging the aforesaid order dated 17.6.2014 passed by the learned Orissa Administrative Tribunal the State-Opposite Parties approached this Court by filing W.P.(C) No.12607, 12760, 12761 and 12762 of 2016. A Division Bench of this Court after hearing the parties, by a detailed order dated 02.12.2016 dismissed the Writ petitions by imposing a cost of Rs.10,000/- on the Petitioner in that case. The State-Opposite Parties, who were Petitioners before this Court in the aforesaid Writ Petitions being aggrieved by order dated 02.12.2016 approached the Hon’ble Supreme Court by filing SLP Diary No.20845/2017. The Hon’ble Supreme Court vide order dated // 4 // 18.09.2017 has been pleased to dismiss the SLP filed by the State Government. 7. After dismissal of the SLP and confirmation of the orders passed by the Tribunal in the aforesaid Original Applications, the Opposite Party no.1 after taking the concurrence of Opposite Party No.2 created nine posts in order to regularize the services of the similarly situated nine persons under regular establishment and they have also sanctioned the pensionary benefit in favour of such persons under Annexure-10 to the Writ Petition. Learned counsel for the Petitioner further contended that basing upon the order of the Government, the Opposite Party No.5 has regularized the similarly situated nine persons in the regular establishment and sanctioned the pension in their favour. 8. Further, drawing the attention of this Court to one Amulya Gauda, who was appointed along with the Petitioner as a Gate Keeper, learned counsel for the Petitioner contended before this Court that his service has been regularized one day prior to his retirement with the concurrence of the Finance Department by the Opposite Party no.1 vide order dated 10.05.2019 and accordingly, the abovenamed person has been granted minimum pension in the meantime. Similarly situated person namely, Dhanurdhar Swain has also been regularized and he has also been extended with similar financial benefits by Opposite Party No.1. 9. In view of the aforesaid facts, learned counsel for the Petitioner submitted that when similarly situated persons have been extended with such benefit, pursuant to the order passed by the Tribunal and in the case of so far Amulya Gauda, order of regularization of service one day prior to the date of his retirement // 5 // has been passed and they have been extended with the benefit of minimum pension by the State Government without any interference by the Tribunal or any Court. Therefore, learned counsel for the Petitioner submitted that taking a different stand in the case of the Petitioner, who stands in a similar footing with the persons named herein above, would amount to gross discrimination. Therefore, it was submitted that the Opposite party Nos. 1 & 2 be directed to consider the case of the Petitioner for regularization of his service one day prior to his retirement and accordingly, the minimum pension as has been given to other similarly situated persons be also given to the Petitioner. 10. Mr.P.C.Das, learned Additional Standing Counsel appearing on behalf of the State-Opposite parties submitted before this Court that the Opposite Parties have not committed any illegality by rejecting the claim of the Petitioner. He further contended that pursuant to the direction of this Court in the earlier Writ Petition, the case of the Petitioner was taken up for consideration by the Opposite Parties. On a careful analysis of the factual background of the Petitioner’s case, the Opposite Parties have come to a conclusion that the Petitioner is not entitled to the benefit, which he has claimed in the present Writ Petition. In course of his argument, he also referred to the Government Order dated 10.08.1981 and Resolution of the Finance Depatment dated 14.01.1980 and submitted before this Court that if a Work Charged employee has worked for five years in the work establishment and in total he has worked for 10 years including the NMR period, he is eligible to be regularized and as such will be entitled to the pensionary benefits. It is submitted by the learned Additional Standing Counsel on instruction received from // 6 // the Opposite Parties that the Petitioner was not found eligible by the Opposite parties and accordingly, his case has been rejected. 11. In reply to the Petitioner’s contention that in the case of similarly situated employees such benefits have already been extended pursuant to the order passed by the Orissa Administrative Tribunal, learned Additional Standing Counsel submitted that pursuant to the order of the Tribunal in those cases after considering the case of those applicants, the Government has taken a decision. So far the present Petitioner is concerned, it is contended by the learned Additional Standing Counsel that there is no direction issued by this Court to grant pensionary benefit and to regularize the service of the Petitioner. In such view of the matter, he further contended that the case of the Petitioner cannot be equated with those persons, who had earlier approached the Tribunal where there was a specific direction by the Tribunal to grant pensionary benefits. 12. Having heard learned counsel for the respective parties and on a careful consideration of their pleadings and the materials available on record, this Court prima facie observes that the Petitioner stands on a similar footing with the persons, who had earlier approached the Tribunal as has been narrated herein above. The persons who had approached the Tribunal are all Gate Keepers. Similarly, the Petitioner was also engaged as Gate Keeper. Their time of initial appointment are almost similar. This Court further on examination of the records, found that the Petitioner had initially joined in service on 10.04.1980 in a regular scale of pay and he was discharging his duty continuously without any interruption till his retirement on 30.04.2018 i.e. he had worked uninterruptedly for almost 38 years. Therefore, on a careful scrutiny of the factual background of the // 7 // present case, as well as the case before the Tribunal, this Court found no substantial difference between the two categories. Moreover, the Order and the Resolution relied upon by the State-Opposite Parties support the case of the Petitioner as he has already completed 38 years of continuous uninterrupted service as Gate Keeper. Denial of such benefits would amount to exploitation of work force in the hands of State employer. 13. In view of the aforesaid factual background, further keeping in view the fact that similarly situated persons, who had approached the Tribunal and by virtue of the order of the Tribunal, which was confirmed by the Hon’ble Apex Court, have been regularized in service a day prior to their retirement and paid the minimum pension and also keeping in view the fact that cases of persons have been considered by the State Government without any Court’s order and they have also been extended with such benefit, this Court is of the view that in the event the Petitioner is not granted the similar benefit, the same would be hit by Article 14 of the Constitution of India. On a careful examination of the records, this Court found no justification whatsoever to deny the benefit to the petitioner, who stand on a similar footing with the persons who are mentioned in Annexure-10 to 12 to the Writ Petition. Accordingly, this Court is of the considered view that the impugned rejection order under Annexure-7 dated 05.06.2020 is unsustainable in law and the same is hereby quashed. Further, the opposite party Nos.1 and 2 are directed to consider the case of the Petitioner and extend all financial benefits which have been extended to the persons under Annexure- 10 to 12 by regularizing the service of the Petitioner one day before his retirement and accordingly the minimum pension as has been // 8 // given to other similarly situated persons be also granted in favour of the Petitioner within a period of two months from the date of communication of the certified copy of this order by the Petitioner. 14. With the aforesaid observation/direction the Writ Petition stands disposed of. However, no order as to cost. Judge Orissa High Court, Cuttack The 22nd of August, 2023/ RKS ( A.K. Mohapatra ) Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 29-Aug-2023 10:44:32