JUSTICE v. NARASINGH W.P
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.34529 of 2022 In the matter of an application under Article 226 & 227 of the Constitution of India. Ratnakar Swain ------------------ …. -versus- Petitioner 1. State of Odisha 2. Engineer-in-Chief, Panchayati Raj & Drinking Water Department, Bhubaneswar 3. Chief Engineer (RWSS), Panchayati Raj & Drinking Water Department, Bhubaneswar 4. Additional Chief Engineer (PR & DW), RWSS Circle, Cuttack 5. Superintending Engineer, (PR & DW), RWSS Division, Cuttack For Petitioner For Opposite Parties : : …. Opposite Parties Mr. S. Mallik, Advocate
Legal Reasoning
Mr. S.N. Das, ASC CORAM: JUSTICE V. NARASINGH W.P.(C) No.34529 of 2022 Page 1 of 8 DATE OF HEARING AND JUDGMENT : 13.02.2025 V. Narasingh, J. 1. Heard learned counsel for the Petitioner and learned counsel for the State. 2. At the outset it is apt to note that the Petitioner, who worked as Fitter-Mechanic, is seeking regularization and pensionary benefits in the case at hand and taking note of the grievance of the Petitioner, this Court by orders dated 2.1.2023 and 10.05.2023 granted time to the State to file counter. Since the counter was not filed, by order dated 16.08.2023, as a last chance, two weeks time was allowed to file counter. Even in the face of such order as the counter was not filed “last and final opportunity” of two weeks was granted as per order dated 12.09.2023. Such time to file counter was further extended by four weeks by order dated 1.3.2024. While passing such order, this Court observed thus: “Let the counter be filed within four weeks, failing which, the matter shall be taken into adjudication on its own merit without further opportunity to file counter affidavit.” W.P.(C) No.34529 of 2022 Page 2 of 8 Taking a liberal view, further time was allowed by order dated 29.07.2024 and the matter was adjourned at the instance of learned counsel for the State on 31.08.2024. The matter was adjourned to 31.08.2024 at the instance of the learned counsel for the Petitioner and the matter was posted to 23.09.2024. While adjourning the matter on 4.11.2024 further prayer was made to file counter and the matter was adjourned to 21.1.2025 to file counter. In spite of repeated opportunities as detailed above, the State has chosen not to file any counter affidavit. Hence, this Court proceeds to hear the matter on merits. 3. The Petitioner was engaged as Fitter Mechanic on NMR basis with effect from 16.12.1980 in Salipur Division under the administrative control of the Opposite Party No.5. Name of the Petitioner appears at serial No.54 (page 11) of the gradation list of the staff maintained by the then Executive Engineer, Cuttack P.H. Division No.III, Cuttack. Considering the nature of grievance, it is apt to note here that the name of one Debendranath Puhan Fitter Mechanic appears in the said gradation list at serial No.57 and his date W.P.(C) No.34529 of 2022 Page 3 of 8 of appointment, in the very division of the Petitioner is 5.3.1981. Since it came to light that said Debendranath Puhan has been regularized and his services have been treated as pensionable, the Petitioner sought information through RTI to test the veracity of the same. The information obtained through RTI which is on record at Annexure-2 indicates that said Debendranath Puhan has been regularized and is getting pension. 4. Referring to the said case of Debendranath Puhan, learned counsel for the Petitioner submits that though he is at all fours with the said Debendranath Puhan but he is being discriminated in the matter of regularization and consequentially he is not getting any pension. 5. The order of retirement of the Petitioner is at Annexure-4 by which it is stated that he is relieved from service on 28.2.2022 on attaining the age of superannuation. Thus it is clear from the uncontroverted materials on record that the Petitioner was in service since 16.12.1980 till he retired on 28.02.2022 after rendering service of more than four decades. W.P.(C) No.34529 of 2022 Page 4 of 8 6. Ventilating his grievance the Petitioner along with other similarly circumstanced moved the then Orissa Administrative Tribunal and after abolition of the same, the lis was transferred to the docket of this Court and renumbered as WPC (OAC) No.1067 of 2018 and by order dated 7.4.2022 directing for consideration of the claim of the Petitioner. The same having been turned down by the impugned order dated 21.11.2022 at Annexure-5, the present writ petition has been filed. 7. During the course of submission, learned counsel for the Petitioner submits that in the case of one Bidhyadhara Mishra, a Coordinate Bench of this Court vide order dated 7.9.2022 in WP(C) No.21769 of 2022 directed grant of pensionary benefits referring to the earlier decisions of this Court in the case of Chandra Nandi vrs. State of Odisha, 2014(1) OLR 734 and in the case of one Nansu Pradhan in O.A No.1189(C) of 2006. 8. It is stated at the Bar that said Nansu Pradhan filed O.A. No.1189(C) of 2006 praying for retiral benefits. Learned Tribunal allowed the retiral benefits in his favour vide order dated 11.6.2009. Assailing the said order, State filed WP(C) No.5377 of 2010 before this Court and by W.P.(C) No.34529 of 2022 Page 5 of 8 order dated 19.06.2009 the writ petition was dismissed and the order passed by the learned Tribunal was confirmed. Being aggrieved the matter was carried to the Apex Court in Civil Appeal No.22498 of 2012 and the order passed by the learned Tribunal and this Court were affirmed and the said appeal was dismissed by order dated 7.1.2013. 9. It is submitted by the learned counsel for the Petitioner that since admittedly the Petitioner has rendered service from 16.12.1980 till the date of his retirement and the services of his junior, namely, Debendranath Puhan has been regularized and he has been granted pensionary benefits, there is no distinguishing feature to deny the similar benefits to the Petitioner. 10. Per contra, learned counsel for the State on the materials on record opposes such views and reiterates the stand taken in the impugned order at Annexure-5 and submits that the appointment of the Petitioner was not against any sanctioned vacancy. Hence, the Petitioner is not entitled to the benefits only on the ground of parity and it is his further submission that each case has to be dealt with on its own taking into account the factual matrix of such case. W.P.(C) No.34529 of 2022 Page 6 of 8 11. There is no cavil about such proposition. But this Court is of the considered view that there is no distinguishing feature so as to deprive the Petitioner from getting pensionary benefits after rendering service of more than four decades. In this context this Court respectfully refers to the latest decision of the Apex Court in the case of Jagoo vrs. Union of India 2024 INSC 1034, which has been reiterated in the case of Shripal & another vrs. Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC 221. It is manifestly clear that the manner in which the judgment of the apex Court in the case of Secretary, State of Karnataka vrs. Uma Devi, (2006) 4 SCC 1 is being applied in the facts of the present case amounts to “selective application” which “distorts the judgment’s spirit and purpose, effectively weaponizing it against the employees who have rendered indispensable services over decades”. There cannot be a more glaring case than the case at hand when after serving for more than four decades, on flimsy grounds notwithstanding the regularization of junior to him, Petitioner is still in the portals of the Court to get his legitimate W.P.(C) No.34529 of 2022 Page 7 of 8 dues and the matter has suffered number of adjournments for non filing of the counter. 12. This Court with the fervent hope that the authority will mend their ways, resists from imposing any cost. 13. Accordingly, impugned order at Annexure-5 is quashed. It is directed that the services of the Petitioner shall be regularized with effect from the date the services of his junior, Mr. Puhan (adverted to herein above) has been regularized and he shall be paid retiral dues in accordance with law within a period of three months hence, failing which, the same shall entail interest at the rate of 10% per annum from the date of entitlement till payment. And, the recovery of such interest shall be effected from the concerned official who is responsible. 14.
Decision
The writ petition is allowed. No costs. (V. Narasingh) Judge Orissa High Court, Cuttack, Dated the, 13th February, 2025/PKS Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Feb-2025 20:00:03 W.P.(C) No.34529 of 2022 Page 8 of 8