The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37414 of 2023 Prasana Kumar Das …. Petitioner Mr. Swapnil Roy, Advocate State of Odisha & Ors. -versus- CORAM: …. Opposite Parties Mr. P.K. Muduli, A.G.A. JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 22.11.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit the writ petition and issue Rule “NISI” to the Opp. Parties to show cause as to; (i) Why the impugned order dated 30.10.2023 communication under on Annexure-10 by O.P. No.5 in the facts and circumstances of the case will not be declared as illegal and liable to be set aside/quashed; and 02.11.2023 (ii) Why the Opposite Parties will not be directed to grant regular pension as due and admissible in favour of the petitioner w.e.f. April, 2023 // 2 // after adding the deficit period from the NMR establishment and the petitioner for pension as provided under OCS (pension) Rules, 1992 within a stipulated time; and thereby enabling (iii) Why the Opposite Parties will not be directed to sanction the gratuity as due and admissible in favour of the petitioner along with interest as provided under OCS(Pension Rules, 1992 within a stipulated time; and (iv) Why the Opposite Parties will not be directed to sanction and disburse the arrear pension as due and admissible on such sanction of regular pension within a stipulated time; and And if the Opp. Parties do not show cause then the Rule be made absolute by issuing appropriate writ/writs and any other order as deem fit be passed.” 4. Learned counsel for the petitioner at the outset submitted that the petitioner was initially engaged as NMR w.e.f. 01.07.1986. Thereafter he continued to discharge his duties. On 15.05.1997 the Finance Department Govt. of Odisha came up with a notification for regularization of NMR/GNMR employees who were engaged prior to 12.04.1993. Such notification reveals that on the completion of 10 years of engagement service of the NMR/GNMR workers, they shall be regularized. While the matter stood thus, on 28.02.2009 the Department of Water Resources, Govt. of Odisha, took a decision to bring over 5072 nos. of NMR employees of the Department of Water Resources, who were recruited prior to 12.04.1993, to the Work- Charged Establishment w.e.f. 01.03.2009. Accordingly, the Government issued guidelines to bring over the NMR employees working under the Water Resources Department to Work-Charged Establishment w.e.f. 01.03.2009. Finally, the petitioner was brought over to the Work-Charged Establishment on 23.09.2009. While working in the Work-Charged Establishment, the petitioner was // 3 // brought over and posted in the Regular (Wages) Establishment as per the order dated 06.02.2023 under Annexure-6 to the writ application. While continuing in the regular establishment, the petitioner retired from service w.e.f 31.03.2023 upon attaining the age of superannuation. Learned counsel for the petitioner further contended that in the year 2020 the Department of Roads and Building sanctioned pension in favour of the some of the NMR employees who are similarly placed with the present petitioner, and were subsequently brought over to the Work-Charged establishment. After his retirement the petitioner took an application before Opposite Party No.5 for the grant of such retiral dues and pensionary benefits in view of the OCS (Pension) Rules, 1992. Since no action was taken on the representation of the petitioner, he was compelled to approach this Court earlier by filing W.P.(C) No.15134 of 2023. The said writ application was disposed of by directing the Opposite Party No.5 to dispose of the representation of the petitioner within two months vide order dated 16.05.2023. Thereafter the Opposite Party No.5, vide order dated 03.10.2023 under Annexure-10 to the writ application, has rejected the prayer of the petitioner for grant of pensionary benefits. 5. Learned counsel for the petitioner in course of his argument referring to the judgment of this Court in Rabindra Kumar Jena v. State of Odisha in W.P.(C) 36009 of 2021, submitted that, the order passed by the Single Judge Bench in Rabindra Kumar Jena’s case (supra) has been affirmed by the Division Bench, in Writ Appeal No.1771 of 2023, vide order dated 19.10.2023. Learned counsel for the petitioner further contended that the case of the present petitioner is similar to the facts in the above noted Rabindra Kumar Jena’s case (supra), wherein, this Court had directed to take into account the // 4 // past service of the petitioner for the purpose of the calculation of the pensionary benefits. In such view of the matter, the learned counsel for the petitioner submitted that the Opposite Parties No.5 has committed illegality by not taking into consideration Rabindra Kumar Jena’s case (supra) while disposing of the representation of the petitioner under Annexure-10 to the writ application. In view of the above contentions, the Learned Counsel for the Petitioner further contended that the order passed by Opposite Party No.5 on 30.10.2023, under Annexure-10 to the writ, is unsustainable in the eye of law and the same is to be set aside keeping in view the law laid down by this Court in Rabindra Kumar Jena’s case (supra). 6. Learned Additional Government Advocate, on the other hand, contended that the Opposite Party No.5 after considering the representation of the petitioner pursuant to the order passed in the earlier writ application, has disposed of the representation of the petitioner by passing a speaking order. Therefore, he further contended that no illegality could be found in the impugned rejection order under Annexure-10 to the writ application. It was also contended by learned Additional Government Advocate that, the petitioner who was working as Time Keeper in the Regular (Wages) Wage Establishment of Superintending Engineer, Mahanadi Barrage Division, Gandarpur, Cuttack, is not entitled to pension as contemplated under Rule 40 under OCS (Pension) Rules 1990, as per the provision under rule 3(4)(iii) of OCS (Pension) Rules 1992 read with Finance Department notification dated 04.09.2015. In such view of the matter, the learned Additional Government Advocate submitted that the present writ application is devoid of merit, and the same should be dismissed. 7. Having heard the learned counsels appearing for the respective // 5 // parties, and on a careful examination of the background facts, as well as the law laid down by this Court in Rabindra Kumar Jena's case (supra), this Court of the considered view that the impugned rejection order has not taken into consideration the law laid down by this Court in Rabindra Kumar Jena’s case (supra). Therefore, this Court observes that the decision taken by the Opposite Party No.5 needs to be reconsidered in the light of the judgment in Rabindra Kumar Jena’s case (supra) and State of Odisha V. Sri Radhashyam Mohanta in W.P.(C) No.12377 of 2009. Accordingly, the impugned order dated 30.10.2023 under Annexure-10 is set aside, and the matter is remanded back to the Opposite Party No.5. The Opposite Party No.5 is directed to reconsider the matter in the light of the law laid down in Rabindra Kumar Jena’s case (supra), as well as State of Odisha V. Sri Radhashyam Mohanta in W.P.(C) No.12377 of 2009 and pass necessary final orders within a period of two months from the date of communication of certified copy of this order. 8. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 25-Nov-2023 18:16:53