In the matter of the applications under Articles 226 and 227 of the Constitution v. Union of India and Others
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.33444 of 2022 In the matter of the applications under Articles 226 and 227 of the Constitution of India. ----------- Sri Niranjan Das … Petitioner - Versus - Union of India and Others … Opposite Parties For Petitioner … Mr. Digambara Mishra, Advocate (In all the cases except W.P.(C) No.35590 of 2020) & Mr. Debashis Hota, Advocate (In W.P.(C) No.35590 of 2022) For Opposite Parties … Mr. P.K. Parhi, D.S.G.I. along with Mr. D.R. Bhokta, C.G.C.; Mr. J. Nayak, C.G.C; Mr. S Swain, Sr. P.C.; Ms. Sulachana Patro, C.G.C.; Mr. C.K. Pradhan, Sr. P.C.; Mr. M.K. Pradhan, C.G.C., Mr. A. Routray, Sr. P.C.; Mr. B.K. Padhi, C.G.C.; Ms. B.L. Tripathy, C.G.C.; Ms. Babita Sahu, C.G.C., Mr. B. Dash, Sr. P.C.; Mr. B. Maharana, C.G.C.; Mr. G. Mohanty, Sr. P.C.; Mr. K.C. Kar, Sr. P.C.; Mr. S. Swain, Sr. P.C.; Mr. P.S. Nayak, Sr. P.C.; Mr. S.S. Kashyap, C.G.C.; Mr. D. Tripathy, C.G.C.; Mr. A. Pradhan, C.G.C.; Mr. M.K. Pati, C.G.C.; Mr.P.P. Behera, C.G.C.; Mr. D. Gochhayat, C.G.C.; Mr. D.K. Sahu, C.G.C.; Mr. B.S. Rayaguru, C.G.C.; & Mrs. J. Sahoo, C.G.C. // 2 // W.P.(C) Nos.33444, 33356, 33358, 33359, 33360, 33362, 33363, 33365, 33366, 33367, 33369, 33370, 33371, 33374, 33375, 33376, 33378, 33382, 33383, 33384, 33447, 33449, 33450, 33452, 33454, 33455, 33456, 33457, 33458, 33460, 33463, 33465, 33467, 33469, 33470, 33471, 33476 and 35590 of 2022 ------------------------------------------------------------------------ PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 31.01.2023 Date of judgment : 24.03.2023 A.K. Mohapatra, J. The present batch of writ applications have been filed by the employees of Orissa Drugs and Chemicals Limited (Opposite Party No.2) with a prayer for a direction to the Opposite Parties to release salary and consequential service and financial benefits including enhanced D.A., H.R.A., Medical Allowance, annual increments, leave encashment, gratuity etc. for the period from 01.04.2017 to 31.03.2019 along with interest @ 12% per annum till the date of actual payment. 2. Since the batch of writ applications indicated hereinabove involve a common question of law, all those matters were taken up together for hearing. Further, since the // 3 // factual background involved in each of the writ application is almost identical the facts involved in W.P.(C) No.33444 of 2022, i.e., in the case of Petitioner-Sri Niranjan Das, is being taken up by this Court for analysis of the factual background of the present case and, accordingly, the same is treated as the lead case in the present batch of matters. All the above noted matters are being disposed of by the following common order. 3. The factual matrix involved in W.P.(C) No.33444 of 2022, in a narrow compass, is that the Petitioner-Sri Niranjan Das has been working in the Opposite Party No.2-Company for over three decades. While he was working in Opposite Party No.2-Company, which is admittedly a Government of India owned company, he was served with a notice of superannuation on 01.03.2017 intimating the Petitioner that since he will attain the age of superannuation w.e.f. 31.03.2017, therefore, he will retire from service w.e.f. 31.03.2017. The aforesaid notice dated 01.03.2017 has been // 4 // issued by the Opposite Parties by taking into consideration the age of the retirement of the Petitioner at 58 years. Therefore, the factual position involved in the present writ petition is almost admitted by both the sides. The only dispute that is involved in the present writ petition is with regard to the age of superannuation, i.e., whether the Petitioner will retire on attaining the age of 58 years or 60 years? 4. The cause of action for filing the writ petition has been shown to have arisen on 26.09.2022 when the Petitioner submitted a representation claiming salary for the period from 01.04.2017 to 31.03.2019 along with all consequential service and financial benefits and interest @ 12% per annum enclosing therewith the judgment delivered by this Court on 5.11.2009 in W.P.(C) No.14966 of 2009 which was affirmed by the Hon’ble Supreme Court in SLP(C) No.6599 of 2010 vide order dated 22.11.2013 and the Review Petition No.19 of 2014 which was dismissed on 26.08.2022. // 5 //
Legal Reasoning
“We, therefore, have no justification to differ with what has been held by this Court in the said case. Admittedly no decision of opposite party No.2 to roll back the age of superannuation from 60 to 58 having been approved by the Government of India, it has no other option except to allow the below board level employees to continue in service up to the age of 60 years. We, therefore, allow this writ application, quash the impugned order in Annexure-1 and direct the opposite party No.2 to permit the petitioner to continue in service till he attains the age of 60 years or till the Government of India approves any decision of opposite party No.2 to roll back the age of superannuation from 60 to 58 whichever is earlier. In the event, the Government of India approves any such decision with effect from any particular date, the petitioner shall be deemed to have retired from that date.” 8. Learned counsel for the Petitioners further contended that the judgment dated 27.11.2008 passed in W.P.(C) No.16487 of 2006 was challenged before the Hon’ble // 8 // Supreme Court by filing SLP No.19895 of 2009 by the Opposite Party No.2 and the same was finally dismissed on 04.04.2013. Thus, it was contended that the judgment passed by the earlier Division Bench on 27.11.2008 had attained finality. Accordingly, the Petitioner in W.P.(C) No.16487 of 2006, namely, Sri Rajkishore Satpathy, who was a below board level employee was allowed to continue after 58 years and was given the corresponding service and financial benefits. 9. Similarly, the judgment of subsequent Division Bench on 05.11.2009 passed in W.P.(C) No.14966 of 2009 was challenged before the Hon’ble Supreme Court at the instance of Opposite Party No.2 by filing SLP(C) No.6599 of 2010. The said SLP also got dismissed on 22.11.2013. As such, the judgment of the subsequent Division Bench of this Court dated 05.11.2009 has also attained finality on being affirmed by the Hon’ble Supreme Court. However, while dismissing the SLP, on the prayer of the Petitioner before the Supreme // 9 // Court, i.e., Opposite Party No.2, the Hon’ble Supreme Court granted liberty to the Opposite Party No.2 to file a review of the judgment dated 05.11.2009. Pursuant to the liberty granted by the Hon’ble Supreme Court vide order dated 22.11.2013, the Opposite Party No.2 filed a Review Petition No.19 of 2014 on 28.01.2014 seeking review of judgment dated 05.11.2009. Although the review petition was filed in the year 2014, the defects in the review petition were not removed and the matter was unnecessary kept pending for 8 years. Finally, the review petition was listed before a Division Bench of this Court on 26.08.2022. While dismissing the review petition, the Division Bench of this Court observed that even after expiry of 8 years from the date of filing, the Petitioner had not bothered to remove the defects in filing the review petition and, accordingly, came to hold that the Opposite Party No.2 is not interested in pursuing the review petition any further. Finally, vide order dated 26.8.2022, the Division Bench directed the Opposite Party // 10 //
Arguments
5. Heard Mr. Digambara Mishra, learned counsel appearing for the Petitioner in the batch of writ petitions except W.P.(C) No.35590 of 2022 and Mr. Debashis Hota, learned counsel appearing for the Petitioner in W.P.(C) No.35590 of 2022 as well as Mr. P.K. Parhi, learned Deputy Solicitor General of India along with learned Central Government Counsels in respective writ petitions. 6. At the outset, it is stated by Mr. D. Mishra, learned counsel appearing for the Petitioner in all the writ petitions that on 05.11.2019, a Division Bench of this Court decided the issue with regard to the age of retirement in case of below board level employees in Orissa Drugs and Chemicals Limited (Opposite Party No.2) to be 60 years or as would be decided by the Union Cabinet to roll-back the age to 58 years. It was further contended by Mr. Mishra that later Division Bench while delivering judgment on 05.11.2009 had also referred to the earlier Division Bench judgment dated 27.11.2008 in W.P.(C) No.16487 of 2006. The earlier // 6 // Division Bench while considering the case of another below board level employees of Opposite Party No.2 has categorically held that no such decision for reducing the age of superannuation from 60 years to 58 years in respect of below board level employees having been approved by the Union Cabinet, it is not open for the Opposite Parties to retire below board level employees on attaining the age of 58 years and, accordingly, the said writ petition was allowed. 7. Learned counsel for the Petitioners further contended that in course of hearing of W.P.(C) No.14966 of 2009, it was also brought to the notice of the subsequent Division Bench that earlier Division Bench allowed the writ petition vide judgment dated 27.11.2008 in W.P.(C) No.16487 of 2006 and as against the said judgment, the Opposite Parties preferred a SLP bearing SLP(C) No.19895 of 2009 and the same was subjudice by then. However, no interim order was passed by the Hon’ble Supreme Court in the above noted SLP. Therefore, the judgment in the earlier writ petition was // 7 // binding on the subsequent Division Bench while considering the case of a similar below board level employee, who was made to retire on attaining the age of 58 years by Opposite Party No.2. The subsequent Division Bench vide judgment dated 05.11.2009 has specifically held as follows:-
Decision
No.2 to release the benefits enuring to the writ petitioner by virtue of judgment dated 05.11.2009 and a further direction was given to release the financial benefit within a period of four weeks. 10. It is further contended by the learned counsel for the Petitioner that it is at that stage the Petitioner approached the Opposite Party No.2 by filing a representation on 26.09.2022 enclosing all orders passed by this Court as well as the Hon’ble Supreme Court and claiming similar benefits as has been extended to the Petitioners by this Court in the earlier writ petitions and claimed relief by taking into consideration their retirement age to be 60 years. Since the representation of the Petitioner was not considered, the Petitioner was compelled to approach this Court by filing the preset writ petition. 11. During the pendency of the present writ petition, the Under Secretary to the Government of India, Ministry of // 11 // Chemicals and Fertilizers issued a Office Memorandum dated 04.01.2023 wherein it has been stated that the age of retirement of ODCL employees would be 58 years. Further, the said O.M. reveals that the same was issued with the approval of Union Ministry of Chemicals and Fertilizers, which is the administrative Ministry of Opposite Party No.2. Referring to the said O.M., learned counsel for the Petitioner contended that by issuing the above noted O.M., a belated attempt has been made by the Opposite Parties to roll-back the retirement age while the matter is subjudice before this Court. He further contended that the Under Secretary, who has issued the above noted O.M. under Annexure-K/3 to the counter affidavit is not the competent authority neither the administrative Ministry is competent to take such a decision. He further contended that as per the rules of business of Government of India, a decision to roll-back the age of retirement has to be taken by the Union Cabinet. Since no decision has either been taken or approved by Union Cabinet // 12 // to roll-back the age of superannuation from 60 to 58 years in the case involved in the present writ petition, learned counsel for the Petitioners fairly contended that the O.M. has been issued by the Under Secretary only with the intention to deprive the Petitioners to get their legitimate dues and to nullify the earlier two judgments of this Court which were affirmed by the Hon’ble Supreme Court. 12. Learned counsel for the Petitioners further referring to the O.M. under Annexure-K/3 to the counter affidavit submitted that the said O.M. dated 04.01.2023 is nullity in the eye of law, as the same is contrary to the judgments passed by two different Division Benches of this Court which were affirmed by the Hon’ble Supreme Court. He also contended that O.M. dated 04.01.2023 is also contrary to the DPE O.M. No.18(9)/2014-GM-GL-62 dated 1st April, 2005. A copy of the which has been filed along with the with petition which specifically provides that the authority to approve the proposals to roll back the age of superannuation from 60 to 58 // 13 // years for all PSEs and all categories of employees including the Board level and below Board level employees, as per the decision of the Government of India, such power vest with the Union Cabinet. The relevant portion of O.M. dated 01.04.2005 is quoted hereinbelow:- 2. The Government has since review this matter and it has now been decided that the powers for roll back of age or retirement of employees of PSEs, including Board level executives, shall henceforth vest with the Cabinet.” The above noted O.M. dated 01.04.2005 was also referred and relied upon by the two different Benches of this Court while deciding the identical issue involved in the present case. Accordingly, it was held that until the Union Cabinet approves rolling back of age of PSE employees, the age of retirement would be 60 years. Moreover, the administrative Ministry, i.e., the Ministry of Chemicals and Fertilizers has no power, authority and jurisdiction to roll back the age of superannuation as has been done by the O.M. dated 04.01.2023. Such a decision is in direct violation of // 14 // O.M. dated 01.04.2005 as well as in violation of the two judgments of this Court referred to hereinabove which were confirmed by the Hon’ble Supreme Court. 13. Learned counsel for the Petitioner further relying upon the judgment of the Supreme Court in the case of National Agricultural Cooperative Marketing Federation of India -Vrs.- Alimenta S.A., reported in 2020 SCC OnLine SC 381, submitted that it has been categorically held by the Hon’ble Supreme Court that any order passed by any authority in contravention of order of the Court, the same is a nullity in the eye of law and the person concerned has to be brought back to the position prevailing earlier. Thus, it was submitted by the learned counsel for the Petitioners that the O.M. dated 04.01.2023 is a nullity in the eye of law and the same is not applicable to the Petitioners. Therefore, the legal position that emerges from the judgments passed by this Court which were confirmed by the Hon’ble Supreme Court is that the age of retirement of ODCL employees below board level is 60 // 15 // years. Further, in the absence of any decision by the Union Cabinet, the Petitioners are entitled to get the benefit of the retirement age of 60 years as has been given to the employees in the earlier two writ petitions. 14. In reply to the allegation made in the counter affidavit that the Petitioners are all fence-sitters and, as such, they cannot get the benefits of judgments passed by this Court earlier, learned counsel for the Petitioner referring to the judgment of the Hon’ble Supreme Court in the case of Raj Kumar and Others -Vrs.- Shakti Raj and Others, reported in (1997) 9 SCC 527, submitted that in view of the glaring irregularity committed by the Government and the conduct of the Opposite Parties being devoid of any sanction of law, the question of estoppel/acquiescence/waiver does not apply at all. 15. In reply to the contention raised by the learned Deputy Solicitor General of India with regard to applicability of the principle of no work no pay and that the Petitioners having // 16 // approached this Court at a belated stage, they would not be eligible for getting any service and financial benefits, the learned counsel appearing for the Petitioners submitted that employees are entitled to all consequential benefits as the fault lays with the employer in failing to utilizing their services and that had the employees like the Petitioners been allowed to continue in service, they would have definitely discharged their duties. He further contended that the Petitioner have been restrained by the Opposite Party No.2 to discharge their duties. The blame cannot be shifted on the Petitioners by saying that they have not worked for the period in question. Learned counsel appearing for the Petitioners in the aforesaid context relied upon a judgment of the Hon’ble Supreme Court in the case of Shobha Ram Raturi –Vrs.- Haryana Vidyut Prasaran Nigam Limited, reported in (2016) 16 SCC 663. Accordingly, learned counsel appearing for the Petitioners tried to justify that the principle of no work no pay has no applicability to the facts of the present case // 17 // and, accordingly, the Petitioners should be given the benefits for the period for which they have raised their claim. 16. On behalf of the Opposite Parties No.2 and 3, a joint counter affidavit has been filed. Learned Deputy Solicitor General of India along with Central Government Counsels appearing in respective writ petitions raised a preliminary objection with regard to representation of Opposite Party No.2 by the Chairman of the Company as described in the cause title of the writ petition. It was submitted that there was no Chairman of the Opposite Party No.2-Company and the Opposite Party No.2-Company is represented by the Managing Director and presently the ODCL is being represented by the General Manager. On perusal of the cause title of the writ petition, it appears that the Opposite Party No.2-Company has been described to have been represented through the Chairman. Therefore, such description is not correct. However, since the General Manager of the Company has been arrayed as Opposite Party No.3 and a // 18 // detailed counter affidavit has been filed on merits of the matter, therefore, this Court has no hesitation to ignore such preliminary objection and to proceed to adjudicate the matter on merits. 17. In the counter affidavit, it has not been disputed that the Opposite Party No.2-Company is a Government of India undertaking and a public sector enterprise, in which, the Government of India holds 51% share and the balance 49% is held by IPICOL. Further, it has been alleged in the counter affidavit that the Company has become sick, as a result of which, the same had been referred to BIFR in the year 1992. The BIFR has passed winding up orders under Section 20 of the Act on 08.04.2003 and forwarded the same to this Court for necessary action. Accordingly, COPET No.32 of 2003 was registered and vide order dated 07.07.2016, a coordinate Bench of this Court had directed the Company to be wound up. Thereafter, vide order dated 08.09.2006, the order of appointment of Official Liquidator was stayed by this Court // 19 // and subsequently by order dated 06.04.2018, this Court had directed the Official Liquidator to take over the possession of assets and properties of the company. Again, by order dated 04.05.2018 in I.A. No.9 of 2018, this Court directed Official Liquidator not to take over possession of the assets as the Company was earning profit, as such, it was in a position to clear-up the dues. Thereafter, although the Board in its meeting held on 17.09.2022 had taken a decision to file an application before this Court in the COPET proceeding to recall the order staying appointment of the Official Liquidator, no action has been taken as of now. 18. Learned Deputy Solicitor General of India further referring to the counter affidavit submitted that the Union Cabinet took a decision on 28.12.2016 which was reiterated on 17.07.219 for closure of the parent company, IDPL after meeting its liabilities from proceeds of disposal of its assets. Accordingly, ODCL Board in its 132nd meeting held on 12.12.2020 noted that production activities at all the plants // 20 // and subsidiaries of IDPL have stopped. Therefore, it was contended that all production activities have since been stopped w.e.f. April, 2021. 19. Learned counsel appearing for the Opposite Parties further contended that pursuant to O.M. No.19.05.1998, the retirement age of employees of below board level employees of all PSEs under the Central Government were enhanced from 58 to 60 years. Thereafter, vide O.M. No.21.08.1998, the enhanced age was made mandatory for all public sector undertakings with further stipulation that in case any PSU does not want to increase the retirement age, then specific exemption was required for the purpose. It was also contended that O.M. dated 09.05.2000 was issued proposing for rolling back of retirement age in case sick/unviable PSUs for which revival/rehabilitation packages are under consideration. Since the parent company, i.e., Indian Drugs & Pharmaceuticals Limited (IDPL) was declared sick by BIFR, the administrative Ministry vide O.M. dated 26.02.2021 // 21 // approved the age of superannuation of below board level employees to 58 years in respect of IDPL and that the ODCL has adopted the age of superannuation as has been followed by the parent company IDPL. Accordingly, all employees of ODCL are being superannuated after attaining the age of 58 years. However, contrary to the aforesaid position, the ODCL board in its 97th Board meeting held on 28.06.2014 resolved that the age of superannuation of ODCL employees was enhanced to 60 years. Learned DSGI at this juncture submitted that the decision taken in the meeting dated 28.06.2004 was never implemented by the Opposite Party No.2-Company. 20. Learned counsel for the Opposite Parties further contended that the Board of Directors of Opposite Party No.2 in its 100th meeting held on 24.11.2006 again took a decision keeping in view the fact that the Company is under consideration for winding up. Accordingly, decided to roll back the age of superannuation to 58 years under Item No.6 // 22 // of the agenda. However, on perusal of the minutes of the meeting under Annexure-G/3, it appears no resolution to that effect has been passed by the Company. Further, pursuant to the decision of the Board on 24.11.2006, the Opposite Party No.2 issued O.M. dated 28.11.2006 for rolling back the age of superannuation of employees to 58 years. The said decision of the ODCL Board was approved by the IDPL Board in its 257th meeting held on 22.03.2007 and, accordingly, rectified the decision of Opposite Party No.2- Company subject to approval of the Government of India. 21. Learned DSGI along with Senior Panel Counsels and CGCs submitted that the Division Benches of this Court in the earlier two writ petitions have not properly considered the aforesaid facts and have erroneously allowed the writ petitions solely on the basis of O.M. dated 09.05.2000. It was further contended that in the meanwhile, the Government of India has already taken note of decision of ODCL Board in its 100th meeting dated 24.11.2006 and, accordingly, vide // 23 // O.M. dated 04.01.2023, the acceptance of the concerned Ministry has been communicated. In the counter affidavit, it has been specifically averred that the decision vide O.M. dated 04.01.2023 has been taken by Department of Pharmaceuticals, Government of India to roll back the age of retirement of the employees of ODCL to 58 years w.e.f. 28.11.2006 and accordingly, it was submitted that a communication has been sent to Shri K.K. Panda that the Petitioner in the earlier writ petition informing him that the ODCL has decided to retire from service w.e.f. 31.10.2009, i.e., on completion of 58 years. 22. So far the present case is concerned, it was submitted by learned counsels appearing for the Opposite Parties that the Petitioner had initially joined as a helper on 05.12.1986 and on attaining the age of superannuation at the age of 58 years he was relieved from service on 31.03.2017. It was also contended that the Petitioner has not raised any objection at the time of his retirement, i.e., 31.03.2017. Further, the // 24 // Petitioner has approached this Court after expiry of period of 5 years by filing the present writ petition. Therefore, it was submitted that since the Petitioner did not raise any objection in the year 2017 and accepted his retirement, he is estopped to challenge the same at a later stage in the shape of present writ petition. In the said context, learned DSGI referred to the decision of the Hon’ble Supreme Court in the State of Gujarat v. Vali Moh. Dosabhai Sindhi, reported in 2006(6) SCC 537 and contended that an employee after sleeping over the matter for decades together and allowing grass to grow under his feet and thereby having attracted the maxim “Vigilantibus non dormientibus jura subveniunt” (Equity comes to the aid of the vigilant and not the slumbering). It was also contended that a similar view had already been taken by the Hon’ble Supreme Court in the case of Rup Diamonds v. Union of India, reported in (1989) 2 SCC 356. 23. Similarly, learned counsel for the Opposite Parties relied upon several judgments of the Hon’ble Supreme Court // 25 // and argued that since the Petitioner was not vigilant enough and he did not approach this Court immediately, hence he has fortified all his rights. Accordingly, no benefit could be granted to the Petitioner relying upon earlier judgments in respect of similarly placed employees. To avoid repetition, this Court has not referred such judgments here again. 24. In course of their submissions, learned DSGI as well as Senior Panel Counsels and CGCs appearing in the connected matters led emphasis of the fact that the Petitioner although retired in the year 2017 did not approach the Opposite Parties and the Government of India till they approach this Court by filing the present writ application after a delay of almost 5 years. On such ground, it was argued that the Petitioner has either forfeited all his rights or waived any right which has accrued in his favour by virtue of earlier judgment delivered by this Court. Accordingly, it was contended before this Court that the Petitioners by virtue of their own conduct have disentitled themselves to get any relief in the present writ // 26 // petitions, as was granted to the Petitioners in the earlier two writ petitions which were confirmed by the Hon’ble Supreme Court. Accordingly, it was argued that the present writ petition is barred by limitation and laches and the same should not have been entertained at this belated stage. 25. Additionally, the learned DSGI as well as Senior Panel Counsels and CGCs appearing for the Opposite Parties argued that the grant of relief by this Court under Article 226 of the Constitution of India being discretionary in nature, such discretion should not be exercised in a case where the party was not diligent and was not prompt in approaching this Court in claiming his right under the law. Further, a distinction was sought to be drawn by the counsels for the Opposite Parties by relying upon the judgment of Hon’ble Supreme Court in the case of R.K. Garg v. Union of India, reported in (1981) 4 SCC 675 to the effect that any classification has to be based on intelligible differentia. By referring to the said judgment, it was argued that the case of // 27 // the Petitioner satisfies the test of intelligible differentia and, accordingly, they fall in a different class and, as such, they cannot be equated with the Petitioner in the earlier writ petition and that such distinction is permissible under the law. Moreover, it was also argued that the Petitioner has intentionally relinquished/waived the right which had accrued in his favour. Therefore, he cannot turned back and approach this Court for grant of such relief which he had relinquished at an earlier point of time. 26. With regard to claim of salary as has been claimed by the Petitioner in the present writ petition, the same was objected to by the Opposite Parties on the principle of no work no pay. It was contended that since the Petitioners did not discharge their duties during the aforesaid period, they are not entitled to any pay for the aforesaid period. In the said context, learned counsel for the Opposite Parties relied upon the judgment of the Hon’ble Supreme Court in the case of Sukhdeo Pandy v. Union of India, reported in 2007 (7) SCC // 28 // 455. In the said reported judgment, it has been held by the Hon’ble Supreme Court that in service jurispendence, a person must be paid, if he has worked and should not be paid, if he has not worked. In other words, the doctrine of “no work no pay” is based on justice, equality and good conscience and further in the absence of valid reasons to the contrary, the doctrine of no work no pay shall be applicable to all such cases which lacks a valid reason as to why the employee did not discharge his duties. 27. In the context of the O.M. dated 04.01.2023, learned counsels appearing for the Opposite Parties submitted before this Court that since the requirement was an approval from the Government of India and the same approval having been given vide O.M. dated 04.01.2023 by the administrative Ministry, any defect in the Board Resolution is cured and, accordingly, the Board Resolution of ODCL as well as IDPL has attained finality and, therefore, the same has to be given effect to. Further, referring to O.M. dated 04.01.2023, it was // 29 // argued that the Ministry has already taken a decision and has communicated the same to the Opposite Parties that the age of retirement has been rolled back from 60 years to 58 years with retrospective effect. Hence, the same must be given effect to and, therefore, the claim made by the Petitioners in the present writ petition is devoid of merit in view of aforesaid O.M. dated 04.01.2023. Finally, it was argued by the learned counsels for the Opposite Parties that the case of the Petitioner is not similar to the Petitioners in the two other writ petitions which are pending before this Court for adjudication. Furthermore, in the event the benefit as has been given pursuant to judgment dated 05.11.2009 passed by this Court in the earlier writ petition, then the same would open a flood gate for other employees to claim such benefit and, as a result of which, the Opposite Parties, particularly the Government of India is likely to suffer huge financial loss. Thus, all the counsels appearing for the Opposite Parties // 30 // echoed in one voice that the present writ petitions are not maintainable and the same are to be dismissed. 28. Having heard the learned counsel for the parties and upon a careful consideration of the pleadings of the respective parties as well as on a conspectus of the materials placed before this Court for consideration, this Court finds that three important questions of law are involved in the present writ petition for adjudication by this Court. (i) Whether the O.M. dated 04.01.2023 which was issued by the administrative Ministry during pendency of the present writ petition and thereby rolling back the age of superannuation from 60 years to 58 years for the employees of Opposite Party No.2-Company is valid and the same has legal force in it? // 31 // (ii) Whether the present Petitioners are entitled to the salary and other services and financial benefits as has been claimed in the present writ petitions in view of the judgments passed by this Court earlier which were affirmed by the Hon’ble Supreme Court? (iii) Whether the claim made by the Petitioners is barred by limitation and, if not, then what relief the Petitioners are entitled to in the present writ petitions keeping in view the legal position that emerges from the facts of the present case? 29. In reply to question No.(i) that is whether the O.M. dated 04.01.2023 is valid in law and the same has legal force, this Court at the first instance would like to refer to the earlier two judgments of the Division Bench of this Court wherein // 32 // the Division Bench of this Court after taking into consideration the resolution of the Board of ODCL (Opposite Party No.2) and IDPL deciding to roll back the age of retirement had specifically come to a conclusion that such decision to roll back the age of superannuation have not been approved by the Government of India, it has no other option to allow the below board level employees to continue in services up to the age of 60 years. Accordingly, the Division Bench in its judgment dated 05.11.2009 passed in W.P.(C) No.14966 of 2009 directed the Opposite Party No.2 to permit the Petitioner to continue in service till he attains the age of 60 years or till the Government of India approves any decision of the Opposite Party No.2 to roll back the age of superannuation from 60 to 58 years, whichever is earlier. It was also observed by the Division Bench that in the event the Government of India approves any such decision with effect from any particular date, the Petitioner shall be deemed to have retired from that date. Therefore, one thing is very clear // 33 // from the aforesaid judgment delivered by the Division Bench that the decision taken by the Board of Directors of the two Companies cannot be given effect to unless the same is approved by the Government of India. Accordingly, the decisions of the Board of Directors of the Companies were not given effect to and relief sought for were granted to the Petitioner in the earlier writ petitions. The only change that has taken place in the meantime is issuance of O.M. dated 04.01.2023. Now, the question is whether the administrative Ministry is competent to take a decision to roll back the age of superannuation of the employees as has been done by issuing O.M. dated 04.01.2023. In the aforesaid context, it is relevant to refer to DPE O.M. No.18(9)/2014-GM-GL-62 dated 1st April, 2005. On perusal of the said O.M., it is clear that the Government of India reviewed the matter of rolling back of retirement age by PSE/PSUs from 60 years to 58 years. After such review, it was decided by the Government that the powers for roll // 34 // back of age of retirement of employees of PSEs, including Board level executives, shall henceforth vest with the Cabinet. On perusal of the judgment rendered by the Division Bench on 05.11.2009, it appears that referring to the aforesaid O.M. dated 01.04.2005, the Division Bench came to a definite conclusion that since the decision of the Board of Opposite Party No.2 does not have the concurrence of Union Cabinet, the same cannot be given effect to and, accordingly, granted necessary relief to the Petitioner as prayed for in the writ petition. Such decision was challenged before the Hon’ble Supreme Court by filing SLP and the Hon’ble Supreme Court dismissed the SLP. Therefore, there is no confusion that the decision of the Board does not have approval of the Union Cabinet to roll back the retirement age. Further, the confirmation of the judgment of this Court by the Hon’ble Supreme Court also makes it clear that the finding of this // 35 // Court that the decision of the Board is required to be approved by the Union Cabinet is also final and binding. Therefore, it is to be tested as to whether latest O.M. which was issued during pendency of the present writ petition on 01.01.2023 has been approved by the Union Cabinet or not? The said O.M. dated 04.01.2023 has been filed as Annexure-K/3 to the counter affidavit. On a plain reading of the said O.M., it does not appear that the said O.M. has been issued with the approval of Union Cabinet. On the contrary, the said O.M. conveys a decision that has been taken by the Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals and the same has been issued under the signature of Under Secretary to Government of India. Further, in the counter affidavit filed by the Opposite Parties No.2 and 3, no where it has been stated the O.M. dated 04.01.2023 has been issued with the concurrence of the Union Cabinet or after approval of the decision by the Union Cabinet. Admittedly, it can only said that the same was issued with the // 36 // approval of Union Ministry of Chemicals and Fertilizers. In such view of the matter, this Court is of the considered view that the O.M. dated 04.01.2023 has no binding effect or legal force as the same has been issued without the approval of the Union Cabinet. It is contrary to O.M. dated 01.04.2005 and the judgment of this Court which was confirmed by the Hon’ble Supreme Court. Accordingly, this Court has no hesitation to hold that the O.M. dated 04.01.2023 under Annexure-K/3 has no binding and legal effect and same does not alter the position as has been decided in the earlier judgment of this Court confirmed by the Hon’ble Supreme Court. 30. The next question that falls for consideration is whether the Petitioners are entitled to the reliefs sought for by them in the present writ petitions, i.e., the salary as well as other financial and service benefits by taking into consideration their age of retirement at the age of 60 years. In reply to the said question, this Court is required to examine the factual // 37 // position before going into the question of law. Here in this case, the Petitioner was appointed as a Helper on 05.12.1986 and on attaining the age of superannuation at the age of 58 years, he was to retire w.e.f. 31.03.2017. Accordingly, the Opposite Parties served a notice on the Petitioner intimating him his date of retirement. It appears from the pleading that the Petitioner had probably accepted the same and he has retired in the meantime. Now the question arises as to whether the Petitioner was ready and willing to perform his duties and he was prevented by the employer not to discharge such duties. On perusal of the pleadings of the parties, it appears that the Petitioner for the first time raised a claim by filing representation on 26.09.2022, i.e., almost 5 years after his retirement. At least there is nothing on record to accept that the Petitioner had raised an objection with regard to his date of superannuation. In such factual background, this Court is required to consider as to whether the Petitioner is entitled to the salary as claimed by him or he would be covered under // 38 // the doctrine of no work no pay as has been argued by the learned counsel for the Opposite Parties. Learned counsel for the Petitioner in the aforesaid context referring to the earlier judgments by the Division Bench of this Court argued that the Division Bench of this Court had earlier granted the relief sought for by the Petitioner. Moreover, since the conduct of the Opposite Parties in permitting the Petitioner to continue upto 60 years, the same has to be considered as illegal and arbitrary. As such, the Petitioners are to be extended the benefits as would have accrued in their favour had they continued in service upto the age of 60 years. While answering the second and third questions referred to hereinabove, this Court examined the earlier two judgments delivered by two different Division Benches of this Court which were confirmed by the Hon’ble Supreme Court. On a careful analysis of the aforesaid two judgments, it appears that the Petitioner-employee had approached this Court // 39 // immediately without any delay and, accordingly, the reliefs sought for by them were extended to them. So far the present Petitioners are concerned, although they were noticed intimating their date of retirement, they did not object to the same, at least, as it appears from the pleadings and records before this Court and for the first time, they filed the representation on 26.09.2022, i.e., after disposal of the Review Petition No.19 of 2014 on 26.08.2022. On further examination, it appears that the Petitioners have failed to demonstrate or, at least bring on record their intention and readiness to work after the retirement notice was served upon them and further any objection to such retirement notice filed by them. Keeping in view the aforesaid factual scenario, the legal position needs to be analyzed at this stage. In the state of Utter Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors., reported in (2015) 1 SCC 347, the Hon’ble Supreme Court was considering an issue as to whether similar situated government employees should be // 40 // granted the benefit of an order passed by a Court in another case, particularly in the context of discrimination and equal treatment based on Article 14 of the Constitution of India. It was held by the Hon’ble Supreme Court in paragraph-22.1 of the said judgment, which is as follows:- “22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all treated similarly situated persons should be similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. In view of the aforesaid view of the Hon’ble Supreme Court, the Petitioners are required to be treated similarly with the Petitioners in the earlier writ petition and the benefit of the judgment in the earlier writ petition has to be extended to the present Petitioners. However, in the very same judgment, the Hon’ble Supreme Court has also carved out an exception // 41 // on the ground of laches and delay as well as acquiescence which has been extracted hereinbelow:- “22.2. However, this principle is subject to well- recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of their counterparts who had approached the court earlier then such in time succeeded employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.” their efforts, the reason that in Additionally, it is well settled principle of law that the law of limitation and the Limitation Act does not apply strictly to the proceedings under Article 226 of the Constitution of India. Although the writ courts at times do not interfere in matters which have been brought to the court after a passage of long time. Further, such refusal to exercise the discretionary jurisdiction is held to be sound and wise and is in larger public interest. Moreover, the conduct of the parties matters a lot for a writ court to exercise its jurisdiction while // 42 // issuing writs under Article 226 of the Constitution of India. The parties must show their bona fide and come to the Court with clean hand. Here in the instant case, there is no explanation as to why the Petitioners never raised any objection, they were intimated their proposed date of retirement at the age of 58 years even though the same was illegal in view of the earlier two judgments. There exists absolutely no justification as to why the decision of the Opposite Party was not objected to by the Petitioners and they did not approach any forum/authority/court for redressal of their grievance till they submitted a representation for the first time in the year 2022. Therefore, from such conduct of the Petitioners this Court cannot infer that the Petitioners are ready and willing to work and discharge their duties upto the age of 60 years. Such readiness and willingness to work and the fact that they were prevented to discharge their duties is a background consideration while applying the doctrine of no work no pay. Had the Petitioners objected to the retirement // 43 // notice and they would have expressed their intention to work upto the age of 60 years, the position would have been different. Further, in such contingency, had they been prevented by the Opposite Parties to perform their duties, the situation would have been different. However, on a scrutiny of the factual background, it appears that there is no material on record to show as to how the Petitioners reacted from 31.03.2017 till 26.09.2022 when they approached the Opposite Parties by filing a representation after dismissal of the review petition by a Division Bench of this Court. In the present context, it would be profitable to refer to a judgment of the Hon’ble Supreme Court in the case of Union of India & Ors Vs. Tarsem Singh, reported in (2008) 8 SCC 648. In the said judgment, the Hon’ble Supreme Court has categorically held that it would be sound and wise not to exercise discretion when the aggrieved person does not approach the court expeditiously and further when the petitioner/applicant allows things to happen and approach the // 44 // Court by way of a stale claim, he seeks to unsettle the settled matters, and the same should not be permitted. The judgment relied upon by the learned counsel for the Petitioner, i.e., National Agricultural Cooperative Marketing Federation of India (supra) involves a complete different set of facts and as such the same is not applicable to the fact of the present case. The judgment of the Hon’ble Supreme Court in Shobha Ram Raturi (supra) is also distinguishable on facts. On a reading of the said judgment, it appears that after enhancement of the retirement age, the Petitioner in that case would have superannuated on 31.12.2005. However, the Petitioner had approach the High Court by filing Writ Petition No.751 of 2003 much prior to his retirement. On the contrary, the said judgment in paragraph-3 categorically held that the appellant was restrained by the respondent to discharge his duties. Therefore, the appellant who was ready to discharge his duties were prevented by the respondent-employer. Accordingly, the Hon’ble Supreme Court held that the // 45 // principle of “no work no pay” is not applicable to the facts of that case. So far the judgment in the case of Raj Kumar (supra) is concerned, this Court is of the considered view that the facts of the said case completely different and, therefore, the same can be distinguished on facts and, as such, the ratio decided therein has no application to the facts of the present case. With regard to the judgment relied upon by the Petitioner rendered by the Hon’ble Supreme Court in Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation, reported in 2022 SCC OnLine SC 641, this Court upon a careful scrutiny of the said judgment is also of the opinion that the facts of the said case is completely different. Further, reliance placed on paragraph-10 of the said judgment by the learned counsel for the Petitioners to the effect that law recognizes a ‘continuing’ cause of action which may give rise to a ‘recurring’ cause of action as in the case of salary or pension, it was held that so long as the // 46 // employee is in service, a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. Further, it was held that if the employee’s claim is found to be correct on merits, they would be entitled to be paid according to the properly fixed pay-scale in future and that the question of limitation would arise for recovery of the arrears for the past period. The Hon’ble Supreme Court further held that the arrear should be calculated and paid as long as they have not become time-barred and the entire claim for the past period should not be rejected. Therefore, the said judgment relied on by the learned counsel for the Petitioner is also of no help to him. 31. Coming back to the facts of the present case, as has been observed in the preceding paragraphs, the Petitioners have approached the Opposite Parties for the first time by filing a representation on 26.09.2022. Thereafter, after none consideration of such representation, they have filed the // 47 // present writ petitions. Even accepting that the Petitioner would have continued upto 60 years, then he would have retired on 31.03.2019. However, the present writ application has been admittedly filed on 06.12.2022, i.e., after expiry of period of 3 years from the date of enhanced date of retirement, i.e., the Petitioner has approached after expiry of three years which runs contrary to paragraph-11 of the judgment relied on by the learned counsel for the Petitioner, i.e., in Raj Kumar (supra) as well as paragraph-10 of the judgment of the Hon’ble Supreme Court in Tarsem Singh (supra). Moreover, this Court would have considered the case of the Petitioners and would have considered not to apply the doctrine of “no work no pay”, had the Petitioners whispered a single word that they were ready and willing to discharge their duty, but they were prevented by their employer to discharge their duties. In the absence of such vital pleading and the materials to prove such fact, this Court has no other option but to apply the doctrine of “no work no pay” to the // 48 // facts of the present case. Accordingly, this Court holds that the Petitioners are not entitled to the salary for the extended period of service by taking into consideration 60 years as their age of retirement. However, this Court has no hesitation to hold that the Petitioners are not bound by the O.M. dated 04.01.2023. Accordingly, their age of retirement should have been extended from 58 to 60 years and they should have been given available other service and consequential benefits including financial benefits except the salary component by taking into consideration their date of retirement at the age of 60. Accordingly, it is directed that the period of service and other service benefits except the salary shall be calculated by taking into consideration the date of retirement of the Petitioners at the age of 60 years including the financial benefits as would be admissible to the Petitioners as per law. Further, the extended period shall also be taken into consideration while calculating pension and gratuity and fixation of pay of the Petitioners and the same shall be paid to // 49 // the Petitioners as per the service condition and the rules governing the field within a period of three months from today, if not already paid. 32. With the aforesaid observations and directions, the writ petitions are partly allowed. However, there shall be no order as to cost. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 24th March, 2023/D. Aech, P.A.