The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36565 of 2022 Ramakanta Mohanty …. Petitioner Mr. A.K. Mohanty, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. P.C. Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 01.02.2024 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “It is therefore, humbly prayed that this Hon’ble Court shall graciously be pleased to admit this writ application and issue a Rule Nisi calling upon the Opposite Parties to show cause as to why the order under Annexure-8 passed by the opp. party no.2 shall not be quashed and as // 2 // to why the opp. parties shall not be directed to release the pension and arrear thereof by taking his past service as qualified service. And if the Opp. Parties to show cause or show insufficient cause the said Rule Nisi be made absolute. fail And any other direction/directions, order/orders be providing complete relief to the petitioner.” writ/writs, issued 4. It is submitted by the learned counsel for the Petitioner that initially the Petitioner was engaged by the Cuttack Municipal Corporation w.e.f. 22.12.1983. While continuing as such, the Petitioner was regularized on 25.2.2017 against a post of Jamadar with the approval of the appropriate Government authorities vide their letter dated 25.2.2017 under Annexure-2 to the writ petition. Learned counsel for the Petitioner submitted that the Petitioner was working continuously since the date of his initial engagement in the year 1983. However, the Petitioner was regularized only in the year 2017 pursuant to a decision of the Council of the Cuttack Municipal Corporation vide Resolution dated 30.11.2016. He further contended that after retirement from service on attaining the age of superannuation, the Petitioner approached the Opposite Parties for the grant of pensionary benefits to the Petitioner by counting the NMR period towards the short fall period for grant of pensionary benefits. However, the Opposite Party-Corporation vide letter dated 05.12.2022 under Annexure-8 has rejected such prayer of // 3 // the Petitioner. Learned counsel for the Petitioner further contended that earlier the Petitioner had approached this Court by filing W.P.(C) No.15600 of 2020 which was disposed of vide order dated 29.06.2022 by granting liberty to the Petitioner to file a fresh representation before the Opposite Party No.3. After disposal of the above noted writ petition, the Petitioner filed his representation on 13.07.2022 which was considered by the Director, Municipal Administration and the same has been disposed of vide the impugned order dated 05.12.2022 under Annexure-8 thereby rejecting the claim of the Petitioner for counting his past service as NMR for the purpose of grant of pensionary benefits. Being aggrieved by such rejection order under Annexure-8, the Petitioner has approached this Court by filing the present writ petition. 5. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that the Opposite Party No.2 has duly considered the representation filed by the Petitioner pursuant to the order passed by this Court in the earlier writ petition. He further contended that after filing of the representation, the Opposite Party No.2, as it appears from the order under Annexure-8, has considered the case of the Petitioner keeping in view the order dated 29.6.2022 passed by this Court in the earlier writ petition. Since the Petitioner was not found eligible for grant // 4 // of pensionary benefits and that the Petitioner has served only two years in the regular establishment, the Opposite Party No.2 has rejected the claim of the Petitioner for grant of any pensionary benefit. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Parties have not committed any illegality in rejecting the claim of the Petitioner. Accordingly, it is submitted that the writ petition is devoid of merit and the same should be dismissed. 6. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record, this Court observes that the Petitioner was initially engaged as a NMR on 22.12.1983. Thereafter, the Petitioner continued discharging his duties on NMR basis without any break in service. Finally, pursuant to a resolution of the Municipal Council and with the approval of the Government, service of the Petitioner was regularized w.e.f. 25.2.2017 against the post of Jamadar. Finally, the Petitioner has retired from service on attaining the age of superannuation w.e.f. 28.2.2019. Taking into consideration the long period of service rendered by the present Petitioner, this Court is of the considered view that the case of the Petitioner should have been considered by the Opposite Parties for grant of pensionary benefits. // 5 // 7. In the context of the present case, this Court would like to refer to the judgment of the Hon’ble Supreme Corut in Captain M. Paul Anthony -v.- Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 wherein the Hon’ble Supreme Court has categorically held that right to get pension is a part of the fundamental right as guaranteed under Article 21 of the Constitution of India. 8. In context of the present case, this Court would also like to refer to the judgment of this Court in Sk. Abdul Motalib v. State and others (W.P.(C) No.32200 of 2022 decided on 04.01.2023) wherein in a case of similar situated person, this Court had directed to calculate the NMR period for grant of minimum pension by taking into consideration so much of the period to make the short fall as is required for the purpose of considering grant of minimum pension to the Petitioner. Since the Petitioner’s case is based on similar factual matrix as in the case of Sk. Abdul Motalib (supra), this Court is of the considered view that the Petitioner also is entitled to the aforesaid benefit for calculation of so much of the past service so as to entitle the Petitioner to get a minimum pension. 9. Accordingly, this Court is of the considered view that the impugned order under Annexure-8 of the writ petition needs reconsideration by the Opposite Party No.2 and, hence, the same is hereby set aside. Further, the matter is // 6 // remanded back to the Opposite Party No.2 to consider the case of the Petitioner by applying the ratio laid down in Sk. Abdul Motalib’s case (supra) and take a final decision in the matter within a period of two months from the date of communication of a certified copy of this order. The Petitioner is directed to approach the Opposite Party No.2 along with a certified copy of this order within three weeks from today. Further, it is directed that in the event there is no other legal impediment, the Petitioner be extended the minimum pensionary benefits as expeditiously as possible, preferably within a period of four weeks from the date of taking such decision. 10. With the aforesaid observation and direction, the writ petition is disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 05-Feb-2024 11:33:12