The High Court
Case Details
Order No. 03. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 30845 of 2024 Sunita Kisku ..…... Petitioner(s) Mr. Amiya Kumar Chhatoi, Adv. -Versus- State of Odisha & Ors. ..…. Opposite Party(s)
Legal Reasoning
Mr. Sanjay Rath, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI
Decision
ORDER 07.01.2025 1. This matter is taken up through a hybrid arrangement. 2. Heard learned counsel for the parties. 3. In filing this Writ Petition, the Petitioner serving as a Superintending Engineer at the Quality Assurance Division, Bhawanipatna, has sought for a direction from this Court to the Opposite Parties for extending the benefits of pre-amended OCS (Pension) Rules, 1992 and the Odisha GPF Rules, 1938 in her favour as per the decision of this Court in the case of Anand Dash vrs. State of Orissa1. 4. Learned counsel for the Petitioner submits that pursuant to the recommendation by the OPSC vide letter No.5648 dated Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19 1 W.P.(C) Nos.15433, 15856 of 2012 W.P.(C) No.1471 of 2013 disposed of on 24.04.2013 MANU/OR/0464/2013 2 16.08.2004 the Petitioner was appointed as Assistant Engineer (Civil) in Class-II (Group-B) of the Odisha Service of Engineers under the Water Resources Department in the Scale of Pay of Rs.6500-200-10,500/-. He further submits that the Petitioner was posted to the Office of the Engineer-in-Chief, Water Resources, Bhubaneswar and she joined as Assistant Engineer on 29.04.2005. 5. Learned counsel for the Petitioner further contends that after joining of the Petitioner, the Finance Department, Government of Odisha amended the OCS (Pension) Rules, 1992, which came into force with effect from 01.01.2005 vide Notification No.44451/F dated 17.09.2005. Subsequently, pursuant to the said notification, the Finance Department issued office memorandum introducing new restructured defined contribution Pension Scheme for new entrants in the State Government service with effect from 01.01.2005. 6. Learned counsel for the Petitioner further argues that the Petitioner has been deprived of pre-amended OCS (Pension) Rules, 1992 and GPF Rules, 1938 because the mended OCS (Pension) Rules came into force with effect from 01.01.2005. However, the advertisement was issued in the year 2003-04. The posts advertised were attached to a pensionable Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19 3 establishment in accordance with Rule 3 (1) of OCS (Pension) Rules, 1992. 7. Learned counsel for the Petitioner further submits that this Court had disposed of the Writ Petition i.e. W.P.(C) No.15361 of 2024 filed by one Sishir Kumar Behera, who is similarly situated with the present Petitioner by citing the ratio decided in the case of Anand Dash vrs. State of Odisha which was confirmed by the Supreme Court. Hence, the Petitioner is entitled to get the benefits of pension and other entitlements as per the pre- amended OCS (Pension) Rules, 1992 and Odisha GPF Rules, 1938. 8. Learned counsel for the State on instruction vide letter No.35630 dated 27.12.2024, submits that the Petitioner’s case is covered under the old pension Rule and her case is under consideration. The instruction received by the learned counsel for the State is extracted hereunder: “I am directed to invite a reference to the subject cited above and to put forth the followings facts relating to the W.P. (C) No. 30845 of 2024 filed by Sunita Kisku for better appreciation of the case. Sunita Kisku, at present working as Superintending Engineer has approached before the Hon'ble High Court for relief on following point. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19 1. To extend the benefits of pre-amended OCS (Pension) Rules, 1992 and Odisha GPF Rules, 1938 in her favour keeping in view of the judgment passed by the Hon'ble Court in the case of Anand Dash Vs. State of Odisha. In a similar matter one Sri Manj Kumar Baraik has approached the Hon'ble Court for relief for applicability of pre-amended OCS (Pension) 4 xxx xxx Rules, 1992 and Odisha GPF Rules, 1938 in his favour in WPC (OA) No.1725 of 2017. While adjudicating the prayer of the petitioner, the Hon'ble Court have observed and passed the following order in paragraph- 7 of their Judgment: Xxx "7 Applying the above decisions to the present case, in which the petitioner joined in service on 07.06.2005, when old OCS Pension Rules, 1992 and G.P.F. (Orissa) Rules, 1938 were governing the field, the amended Pension Rules, 2005 which came into force on being notified on 31.08.2007 and 17.09.2005, which was after his joining in service, are not applicable to the petitioner and, as such, he was appointed against the vacancy occurred in the year 2003. In view of such position, no other view can be taken by this Court at this stage debarring the petitioner to get the benefit of pre-amended rules, which are applicable to him. Therefore, this Court directs the authority to extend the benefit of pre-amended OCS Pension Rules, 1992 and Odisha GPF Rules, 1938 in favour of the petitioner within a period of three months from the date of communication of this order." This matter was referred to the Finance Department for their considered opinion as per the procedural requirement prescribed under Odisha Government Rules of Business as defined in the Memorandum dt.02.01.2004 in Para-2. Para-2 "Rule 10 of the Rules of Business relates to concurrence of Finance Department on various matters affecting the finances of the State. For ready reference, Rule 10 of the Rules of Business is reproduced below. "10 (1) No department shall without previous consultation with the Finance Department authorize any orders (other than orders pursuant to any general delegations made by the Finance Department) which either immediately or by their repercussions will affect the finances of the State or which in particular, either- b. relate to the number or grading or cadres of posts or the emoluments or other conditions of service or post; or c. involve any grant of land or assignment of revenue or concession, grant lease or license of mineral or forest rights or a right to water-power or any easement or privilege in respect of such concession; or d. in any way involve any relinquishment of revenue. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19 xxx Xxx Hence, any order implication that are to be financial implemented by the Administrative Department should have the prior opinion of the referral department i.e. Finance Department. involving xxx 5 In the recent case of Sri Manoj Kumar Baraik the Finance Department is of the opinion that, as Government policy decision, it has been decided to place the services of employees under the OCS(Pension) Rules, 1992 and the GPF(Odisha) Rules, 1938, those who have been appointed against regular substantive posts during the period from 01.01.2005 to 16.09.2005 and have obtained order from Court of Law in ratio of Anand Dash case. In the case of Sri Baraik Water Resources Department has been advised to obtain an undertaking from the petitioner that he should not claim the benefit of NPS in future which must be attached with the service book and furnish first three pages of his service book along with a draft Office Order for vetting of Finance Department. It has also been advised to consider similar claims of remaining 37 cases who have joined between 01.01.2005 and 17.09.2005 adhering to FD principle. As per Annexure-1 to the W.P.(C) No.30845 of 2024 filed by Sunita Kisku, the petitioner has also got her appointment in the same appointment order No.14643, Dt.28.04.2005 at serial No.15 of the order. Hence, the citation made by the petitioner in the writ petition giving examples of the orders Dt.24.04.2013 of the Hon'ble High Court in the case of Anand Dash Vrs State of Odisha and Others claiming financial benefit coming under the purview of the OCS(Pension) Rules, 1992 and the GPF(Odisha) Rules, 1938 is to be further processed by the Government to take final decision for the group of persons specifically who were appointed vide order No.14643, Dt.28.04.2005 of Water Resources Department (copy enclosed). Hence, the averments made by the petitioner in the writ petition are being examined. This aspect may please be placed before the Hon'ble Court for their kind consideration for the present.” 9. In such view of the matter and considering the submission made by the parties, this Writ Petition stands disposed of with a direction to the Opposite Parties to extend the benefits of Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19 pension and other entitlements to the Petitioner as per the pre- amended OCS (Pension) Rules, 1992 and Odisha GPF Rules, 1938 in consonance with the judgment of Anand Dash (supra) 6 confirmed by the Supreme Court at the earliest preferably within a period of eight weeks from the date of presentation of this order. Judge ( Dr. S.K. Panigrahi) Murmu Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Designation: P.A. Reason: Authentication Location: OHC Date: 08-Jan-2025 18:56:19