The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.38450 of 2023 Ananda Chandra Das & others State of Odisha & others -versus- …. Petitioners Mr. K.C. Sahu, Advocate …. Opposite Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA ORDER 13.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioners as well as learned Additional Government Advocate for the State-Opposite Parties.
Decision
Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed by the Petitioners with the following prayer : “It is, therefore, prayed that your Lordships may be Order No. 03. graciously be pleased to pass following relief(s):- (i) The Hon'ble court be pleased to admit & allow the writ petition. (ii) The Hon'ble Court be pleased by quashing the impugned order of rejection dtd. 26.10.2023 under Annexure-11 with further directing the Opp. parties for incorporating/inclusing governing the services of the petitioners under the O.C.S (Pension) Rule 1992 and G.P.F (O) Rule by further directing for opening of the GPF account in favour of the petitioners for enabling them to make GPF subscription so also for enabling them to get the pensionary benefits at par with the similar situated batch mates of the petitioners i.e. MPHW(M) of Kandhamal district in light of decision taken by the govt. as per order dtd. 19.07.2023 under Annexure-8 within a time bound period for the interest of justice. (iii) The Hon'ble Court be pleased to pass any other Writ(s), // 2 // Direction(s), Order(s) as this Hon'ble Court may be deemed fit and proper;” 4. The factual background leading to filing of the present writ application at the instance of the Petitioners in gist, is that, it is claimed in the writ application the Petitioners were initially appointed in NLEP Project during the year 1997-98 against duly sanctioned vacant post as Para Medical Worker (PMW). After closure of the NLEP Project, the Petitioners along with similarly other persons were absorbed/ appointed against the sanctioned post of MPHW (M) w.e.f. 01.04.2004 under the Administrative Control of CDM & PHO, Sundargarh pursuant to the order under Annexure-1. 5. While the Petitioners were continuing as MPHW (M), as per Government in G.A. & P.G. Dept. Resolution dtd.17.09.2013, the services of the petitioners were regularized w.e.f. 18.09.2013 as per the order of regularisation dtd.01.03.2014 passed by the CDM & PHO, Sundargarh under Annexure-2 to the writ application. Thereby regularizing the services of the petitioner from the date of completion of six years of contractual service. It is further submitted that similarly situated persons and the batchmates of the Petitioners, who were working in NLEP Project in respect of other district of the State of Odisha and were subsequently brought over as MPHW (M) by their respective CDM & PHO and were engaged against sanctioned vacant post w.e.f. 01.04.2004. In respect of Kandhamal district, approached the learned OAT by filing O.A. No.1106(C) of 2015. The learned Odisha Administrative Tribunal after hearing the learned counsels appearing for the parties by their final order dated 03.04.2019 have issued a direction to include services of the Petitioners under the OCS (Pension) Rules, 1992 & GPF (O) Rules, 1938 w.e.f. 2004 as per Annexure-3. The State-Opposite Parties being aggrieved by the order dated 03.04.2019 passed by the learned OAT approached this Court by filing W.P.(C) No.29224 of 2020. A // 3 // Division Bench of this Court after examining the issue was not inclined to modify the order passed by the Tribunal and accordingly the writ application preferred by the State-Opposite Parties challenging the Tribunal order was dismissed vide order dated 05.10.2021 thereby confirming the order of the learned OAT under Annexure-5 to the writ application. 6. Challenging the aforesaid order passed by a Division Bench of this Court, the State-Opposite Parties preferred an appeal before the Hon’ble Supreme Court by filing SLP (C) No.12835 of 2022. It appears from examination of record, that the above noted SLP was listed on 01.08.2022 and the same was disposed of on the very same day thereby dismissing the SLP and confirming the order passed by the learned OAT as well as this Hon’ble Court. As a result of which the order passed by the Tribunal initially on 03.04.2019 has attained finality in respect of similar situated persons engaged in Kandhamal district. Learned counsel for the petitioners submitted that the order passed by the learned OAT which was confirmed by this Court as well as Hon’ble Apex Court has already been implemented in the meantime by the State Government vide order dated 19.07.2023 and accordingly the Petitioners have been included under the OCS (Pension) Rules, 1992 as well as under the GPF(O) Rules, 1938. 7. Learned counsel for the petitioner while emphatically submitted that the Petitioners stand in a similar footing with the persons who had approached the Tribunal by filing O.A. No.1106(C) of 2015, which was eventually confirmed by this Court as well as Hon’ble Apex Court, stand in a similar footing with the present Petitioners. Further, referring to the materials available on record, learned counsel for the petitioners demonstrated before this Court that there is no difference between the present Petitioners as well as the applicants before the Tribunal in the above noted case. In such // 4 // view of the matter, learned counsel for the Petitioners submitted that similar benefits be extended in favour of the Petitioners. Learned counsel for the Petitioners further referring the impugned rejection order dated under Annexure-11 to the writ application i.e. order dated 26.10.2023 submitted before this Court that the Opposite Parties while considering the case of the Petitioners pursuant to the order dated 10.08.2023 passed in W.P.(C) No.25926 of 2023, i.e. the writ application preferred by the Petitioner earlier, disposed of the representation of the petitioner by passing a detailed order. 8. On perusal of the impugned rejection under Annexure-11, this Court observed that the Opposite Parties have referred to a case which is pending before the Hon’ble Apex Court, wherein the Hon’ble Apex Court while dismissing the SLP which has been referred to hereinabove observed as follows “question of law is open”. On such ground, learned Additional Government Advocate submitted that since the Supreme Court has let the question of law open, the Opposite parties are well within their authority to raise the same question again before this Court, accordingly it was argued that the Petitioners are not entitled to the relief, they have sought for in the present writ application. In course of his argument, learned counsel for the State submitted that the Petitioners having been regularized in service post 2005 i.e. after the Odisha Pension Rules was amended, the Petitioners are not entitled to the pensionary benefits under the OCS (Pension) Rules, 1992 before the same was amended. He also contended that in similar cases the SLP is pending the Hon’ble Supreme Court while accepting the State’s appeal have granted interim order thereby staying the order passed by this Court. In such view of the matter, learned Additional Government Advocate submitted that the case of the Petitioners is devoid of merit and accordingly, the same should not be entertained. // 5 // 9. In reply to the submission made by learned Additional Government Advocate, learned counsel for the petitioners that the cases which the learned Additional Government Advocate referred to are the cases pertaining to the Homeopathy Doctors which have been admitted by the Hon’ble Apex Court and the same is still pending for adjudication. So far the present Petitioners are concerned, it is stated that they are covered by the ratio laid down in Birenmitra Swain’s case (O.A. No.1106(C) of 2015) and the order passed by the learned Tribunal which was confirmed by this Court as well as the Hon’ble Apex Court are based on an identical factual scenario. In such view of the matter, learned counsel for the Petitioners submitted that the unless the Petitioners are extended with the benfits as has been extended in the case of above named Birenmitra Swain, such deny would amount to discrimination thereby the right of the Petitioners under Article-14 and 16 of the Constitution of India would be seriously infringed. In course of his argument, learned counsel for the Petitioners also referred to several judgments of the Hon’ble Supreme Court wherein the Hon’ble Apex Court has held that similarly situated persons are to be treated similarly without creating any sub-class within the same class otherwise the same would be hit by the principles underlying the Article-14 and 16 of the Constitution of India. 10. Having heard the learned counsels appearing for the respective parties as well as on a careful examination of the background facts of the present case as well as the materials on record. Further taking into consideration the order passed by the learned OAT in Birenmitra Swain’s case (supra) which was confirmed by this Court as well as the Hon’ble Apex Court, this Court observed that the Petitioners stand in an identical footing. In fact, the present Petitioners as well as the above named Birenmitra Swain were almost identically placed, the only // 6 // difference is that they are posted in different districts of the State of Odisha. Since a view has already been taken by the Tribunal in case of similarly situated persons which have been affirmed not only by this Court but also by the Hon’ble Apex Court, this Court finds no reason to take a different view than the view that was taken by the Tribunal which has been upheld by this Court as well as the Hon’ble Apex Court. In view of the aforesaid analysis as well as the factual background of the present case, this Court is of the considered view that the impugned rejection order under Annexure-11 to the writ application is unsustainable in law and accordingly, the same is hereby quashed. Further, the Opposite Parties are directed to consider the case of the Petitioner in the light of Birenmitra Swain’s case (supra). Further, keeping in view the observations made hereinabove, the Opposite party No.1 shall do well to extend the same benefits in favour of the present Petitioners within a period of two months from the date of communication of certified copy of this order. 11. With the aforesaid observations/ directions, the writ application stands disposed of. 12. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 15-Feb-2024 11:02:38