Orissa High Court
Kailash Chandra Barik vs State Of Odisha & Ors on 4 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No. 2294 of 2017
Kailash Chandra Barik ..... Petitioner
Mr.S.B. Jena, Adv.
- Versus -
State of Odisha & Ors. .... Opposite Parties
Mr. M. Balabantaray,
Standing Counsel for the State
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
04.08.2021
Order No. This matter is taken up through video conferencing.
02.
The petitioner has filed this writ petition seeking direction to
opposite parties to sanction pensionary and other retrial benefits by
treating the petitioner as a regular employee with retrospective
effect after completion of five years of service under work charged
establishment and further seeks direction to opposite parties to pay
the arrear dues with interest.
Mr. S.B. Jena, learned counsel for the petitioner contended
that similar benefit has been extended to one Narusu Pradhan as
stated in paragraph-6.12 of O.A. and there is no denial of the same.
As such the petitioner having stood in similar footing, he is entitled
to grant all the benefits.
Mr. M. Balabantaray, learned Standing Counsel for the State
contended that the petitioner has already retired from service and
he was working as a Jr. Clerk cum Typist and he has been paid the
benefit in terms of the Appendix-III OPWD Code, Vol-II, i.e., Odisha
Work-charged employees (Appointment and Condition of Service)
Instruction, 1974, therefore, the claim of the petitioner cannot
sustain in the eye of law.
Having heard learned counsel for the parties, after going
through the records it appears that the petitioner was appointed as
NMR under Assistant Engineer, City (R&B) Sub division, i.e.,
opposite party no.4 and while working as such, he was appointed as
a Jr. Clerk cum Typist under work charged establishment vide office
order dated 15.01.2011. Finally, he was retired from service w.e.f.
31.08.2016. During his service period he had been given the
benefit of revision of pay as per different ORSP Rules and he was
granted annual increments from time to time and was also
transferred to different divisions in the interest of the Government
works during his service period like regular employees. In obedience
to the direction of the apex Court, this Court and the Tribunal, the
Government of Odisha in Finance Department introduced a
guideline bearing Resolution No. 22764 dated 15.05.1997 to
brought over the work charged/NMR/DLR personnel to the regular
establishment, those who have appointed prior to 12.04.1993. Even
though the petitioner fulfilled the criteria, his case was not
considered, but the other similar employees have been considered,
namely Dayanidhi Rout. When the case of the petitioner was not
considered to convert his service to regular establishment, he filed
O.A. No.4161(c) of 2016 with a prayer to direct the opposite parties
to pay the provisional pension, DCRG from the date of retirement
with arrears. Learned Tribunal vide order dated 30.11.2016
disposed of the O.A. with a direction to the opposite party no.2 to
consider and dispose of the representation at Annexure-9 within a
period of two months from the date of receipt of copy of the order. It
contended that opposite party no.2 taking into account the order
passed by the tribunal in O.A. No.1189(c) of 2006 which was
confirmed by this Court as well as the apex Court rejected the claim
of the petitioner, for which the petitioner has challenged the same in
the aforesaid writ petition. In the meantime he retired from service
on 31.08.2016.
As it reveals from the record that one Narusu Pradhan, a
similar circumstanced person like the petitioner had filed O.A. No.
1189 (C) of 2006 praying for retrial benefits. The Tribunal allowed
the retrial pensionary benefits in his favour vide order dated
11.06.2009, which was challenged by the State before this Court in
W.P.(C) No. 5377 of 2010. This Court dismissed the writ petition on
19.12.2011 and confirmed the order passed by the Tribunal.
Thereafter against the order passed by this Court, the State has
preferred SLP in Civil Appeal No. 22498 of 2012, the same was also
dismissed on 07.01.2013. The petitioner has made a specific
pleading in paragraph-6.12, which reads as follows:
"6.12. That the case of the applicant is squarely covered
by the decision of this Hon'ble Tribunal delivered in the
case of Narusu Pradhan v. State of Odisha and others
(O.A. No.1189(C)/2006). In the said case the Hon'ble
Tribunal held that the work charged employees are
entitled to be regularized after working for a period of five
years in the work charged establishment and also entitled
to get the pensionary benefits. The said judgment was
challenged by the State in W.P.(C) No.5377 of 2010 and
dismissed by the Hon'ble High Court of Odisha.
Thereafter, State Govt. moved the matter before the
Hon'ble apex Court of India in SLP (C) No.22498 of 2012
and the same was also dismissed. Thereafter, Govt.
allowed pension in favour of Narusu Pradhan vide order
no.2858 dated 9.5.2013. Copy of the order of the Hon'ble
Tribunal, High Court of Odisha and Apex Court of India
and order no.2858 dated 9.5.2013 are annexed to this
original application as Annexure-6 series.
In the counter affidavit filed by opposite parties, no reply has
been given to paragraph-6.12. Thereby, there is no denial of the
contentions raised by the petitioner in paragraph-6.12. In that view
of the matter, the relief claimed by the petitioner is fully covered by
the judgment of the Tribunal passed in the case of Narusu Pradhan,
which has been confirmed by this Court as well as the apex Court.
Thus the petitioner, having stood in similar footing, is entitled to get
the benefits which have been extended to Narusu Pradhan and for
that the impugned order dated 17.06.2017 under Annexure-11 is
liable to be quashed and is hereby quashed. Consequentially, the
petitioner is entitled to all the differential benefits as due and
admissible to him in accordance with law and the same shall be
granted to him in accordance with law within a period of four
months from the date of communication of this order.
As the restrictions due to resurgence of COVID-19 situation
are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court's Notice No.4587,
dated 25th March, 2020 as modified by Court's Notice No. 4798
dated 15th April, 2021.
(DR. B.R. SARANGI)
Ashok
JUDGE
