Orissa High Court

Afr Udayanath Rout vs State Of Odisha & Others on 10 August, 2021

                       ORISSA HIGH COURT: CUTTACK


                        WPC (OAC) NO. 2408 OF 2015

           In the matter of an application under Article 226 of the
           Constitution of India.
                                  ---------------

   AFR     Udayanath Rout                                 .....    Petitioner


                                          -Versus-

           State of Odisha & others                       .....   Opp. Parties


              For Petitioner   :      M/s.S.N. Patnaik, P. Mohapatra,
                                      S. Mohapatra & A.A. Mohanty,
                                      Advocates

             For Opp. Parties :       Mr. M. Balabantaray,
                                      Standing Counsel



           P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON : 09.08.2021

DR. B.R. SARANGI, J. The petitioner, while working as

Attendant (Class-IV) under the Medical Officer,

Community Health Centre, Bankoi, Khurda, has filed

this writ petition seeking to quash the letter dated // 2 //

29.11.2013 under Annexure-6 issued by Finance

Department, Government of Odisha, clarifying the

applicability of New Pension Scheme in case of

contractual employees appointed prior to 01.01.2005

and brought over to regular establishment after that

date; as well as order no.3331 dated 12.01.2015 under

Annexure-7 issued by the office of opposite party no.3-

Principal Accountant General (A&E), Odisha cancelling

the GPF accounts numbers in respect of those

employees working on contractual basis prior to

01.01.2005 and regularized after 01.01.2005 and

directing to stop GPF deduction of such employees and

forward the concerned FP application for settlement;

and further to issue direction to the opposite parties to

deduct the GPF from his salary as per OCS (Pension)

Rules, 1992 and G.P.F. (Orissa) Rules, 1938 and not to

cancel the GPF account number allotted in his favour.

2. The factual matrix of the case, in brief, is that

the petitioner was initially engaged as Attendant (Class-

IV) under the Medical Officer, Community Health Centre // 3 //

(CHC), Bankoi, Khurda, pursuant to order dated

26.03.1999 under Annexure-1 for a period of 44 days

purely on temporary basis, and the same was extended

from time to time. Claiming regularization of his service,

the petitioner filed O.A. No.1246(C) of 2001 before the

Odisha Administrative Tribunal, Cuttack Bench,

Cuttack, which has been disposed of, along with batch

of cases, vide order dated 16.04.2012 with the following

direction:-

"8. In view of the submissions advanced by the learned counsel for the applicants and the learned standing counsel these O.As are disposed of with a direction to the respondents to examine the case of each of the applicants on individual basis keeping in view the decisions cited above. The respondents are further directed to prepare a list of those candidates on the basis of their seniority in cases covered under the said decisions and take up the regularization of only those candidates as per term and seniority, if they are still continuing in service. The respondents are directed to complete the process and issue appropriate orders in the matter within a period of three months from the date of receipt of a copy of this order. till the process is completed the applicants shall not be removed from service."

2.1. In pursuance of such order of the tribunal,

the CDMO, Khurda, vide letter dated 18.06.2012 sought // 4 //

clarification from opposite party no.1 as well as opposite

party no.4. Consequentially, opposite party no.1

referred the matter to the Administrative Department as

well as Law Department for examination and after

obtaining the views, opposite party no.1, vide order

dated 05.12.2012, directed the CDMO, Khurda to

comply with the order dated 16.04.2012 passed by the

Tribunal in O.A. No. 1246(C) of 2001. On receipt of the

said letter, the CDMO, constituted a selection

committee, vide office order dated 10.12.2012. The

selection committee considered the case of the

petitioner and keeping in view the decision of the apex

Court, the seniority of the petitioner as well as the

period of service rendered by him, recommended his

name for regularization of his service against regular

Class IV post. Consequently, on the basis of the

recommendation made by the selection committee, the

CDMO, Khurda issued regular appointment order in

favour of the petitioner on 12.12.2012. The relevant

portion of the said appointment order reads as follows:

// 5 //

"In view of orders of Hon'ble O.A.T. & instruction of Govt. issued thereon Udaynath Rout who is continuing as Attendant on 44 days basis at PHC (N) Manibandha under CHC Bankoi is hereby appointment on regular basis as Attendant in the scale of pay Rs.S-1, Rs.4750- 14680/- with G.P. Rs.1500/- as well as D.a. as may be sanctioned by Govt. from time to time & allowed to continuing as such at PHC(N) Manibandha under CHC Bankoi on regular basis with effect from the date of issue of the order.

The appointment is also subject to the following conditions.

1. The pension will be guided as per provision of OCS (Pension) Rules 1992 in pursuance to Finance Deptt. Letter No.17114 (255)-Pen-7/07/F dt. 4.4.2007.

2. The regularization is purely temporary and terminable at any time if the incumbent is found to be unsuitable/ineligible, after observing the relevant rules in vogue."

In view of the aforementioned order and after

regularization of service of the petitioner, necessary

service book was opened and subscription was deducted

towards GPF account and the petitioner was enjoying all

the benefits as due and admissible to him being a

regular Government employee.

2.2 Thereafter, opposite party no.1 issued an

order on 22.05.2013 directing the CDMO, Khurda to

cancel the regular appointment issued in favour of the // 6 //

petitioner with an observation that the petitioner has

not completed 10 years of continuous service before the

date of decision of the apex Court in Uma Devi v. State

of Karnataka, 2006 AIR SCW 1991. Challenging the

said order, the petitioner filed O.A. No.2318 (C) of 2013

and the Odisha Administrative Tribunal, Cuttack Bench,

Cuttack, while issuing notice passed the interim order

directing to keep the order dated 22.05.2013 in

abeyance. Pursuant to the said order, the petitioner is

continuing against the regular post. As the salary of the

petitioner was not released, the tribunal also directed to

release the salary. Ultimately, after due adjudication,

the tribunal, vide order dated 05.01.2017, disposed of

O.A. No.2318 (C) of 2013 and batch by passing the

following order:-

"6. Pursuant to order of the Tribunal, a clarification was sought for by the CDMO, Khurda from the Government as well as respondent no.2-Director of Health Services vide letter dated 18.6.2012. The respondent no.1 vide order dated 5.12.2012 directed the CDMO, Khurda to look into the matter and ensure for compliance of the order of the Tribunal. Getting confirmation from the Government, the CDMO, Khurda constituted a selection committee vide office order dated 10.12.2012. The cases of the // 7 //

applicants were placed before the duly constituted selection committee dated 12.12.2012 and keeping in view the decision of the Hon'ble Apex Court, seniority of the candidates as well as period of service rendered by them, the Committee recommended all the candidates for regularization of their services against regular Class-IV posts. Consequent upon the recommendation of the Selection Committee, the CDMO, Khurda issued regular appointment order in favour of the applicants vide order dated 12.12.2012. Perused the proceeding of the selection committee dated 12.12.2012. The selection committee held that the engagement of candidates in different medical institutions against single sanctioned post was irregular but not illegal. Their engagement were considered originally to meet the urgent need of the medical institutions and their service appears in public interest and need. They were continuing 10 years and more with some gap due to termination of their services because of imposition of ban which was subsequently concurred by Finance Department on their UOR No.79 SSI dated 20.11.2002. It is found that the Selection Committee taking all aspects in view had taken a rational decision to regularize the services of the applicants. It is pertinent to mention here that whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection committee which has the expertise in the particular filed. The decision of the Selection Committee can be interfered only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. it is not disputed that in the present case the CDMO, Khorda had properly constituted the selection committee which recommended the cases of the applicants for their regularization in service after going through all the relevant materials before it.

Based on the report of the selection committee; the CDMO, Khorda issued the order of // 8 //

appointment on regular basis to the applicants thereby regularizing their services. Once the applicants were regularized through a selection committee, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice. Hence, we do not find any force in issuing order dated 22.5.2013 and order dated 1.6.2013 cancelling the regularization of the services of the applicants."

2.3 Challenging the order dated 05.01.2017

passed by the tribunal in O.A. No.2318 (C) of 2013 and

batch of cases, the State and its functionaries filed

W.P.(C) No.5666 of 2018 before this Court and vide

order dated 17.07.2018, while disposing the said cases,

the Division Bench of this Court passed the following

order:-

"As it appears pursuant to the order passed by the Tribunal earlier, Selection Committee was constituted and on the recommendation of the said Selection Committee, the CDMO issued regular appointment order in favour of the applicant on 12.12.2012. Thereafter his service book was opened and subscriptions have been deducted towards GPF and the applicant was enjoying all the benefits as due and admissible to a regular government servant. However unilaterally and without following the principle of natural justice and without any reason and in contravention of Article 311 of the Constitution of India, order has been issued cancelling the regularization of the service of the applicant. The Tribunal taking into consideration of the same and in the facts and circumstances discussed above, passed the impugned order.

// 9 //

There is no error apparent in the face of the impugned order, for which, we are not inclined to interfere with the same in exercise of the jurisdiction conferred under Article 227 of the Constitution of India."

The aforesaid order clearly indicates that the Division

Bench of this Court has confirmed the order of the

tribunal holding that the regular appointment made in

favour of the petitioner dated 12.12.2012 is well

justified.

2.4 In the meantime, the order impugned dated

29.11.2013 has been passed by the Government of

Odisha, Finance Department under Annexure-6 by way

of clarification on applicability of New Pension Scheme

in case of contractual employees appointed prior to

01.01.2005 and brought over to regular establishment

after that date, and consequentially, the order dated

12.01.2015 under Annexure-7 has been passed by the

Principal Accountant General (A & E), Odisha cancelling

the GPF accounts numbers of those employees working

under contractual basis prior to 01.01.2005 and

regularized after 01.01.2005 and requesting to stop // 10 //

deduction of GPF and forward the concerned FP

application for settlement at its end.

2.5 Challenging the aforesaid orders, the

petitioner preferred O.A. No.2408(C) of 2015 before the

Odisha Administrative Tribunal, Cuttack Bench,

Cuttack, but due to abolition of the tribunal the said

Original Application has been transferred to this Court

and renumbered as WPC(OAC) No.2408 of 2015.

3. Mr. S.N. Patnaik, learned counsel for the

petitioner contended that by virtue of order dated

16.04.2012 passed by the Odisha Administrative

Tribunal in O.A. No.1944(C) of 2001 and batch, due

scrutiny was made with regard to service rendered by

the petitioner and consequentially, a selection

committee was constituted which recommended for

giving regular appointment, basing upon which the

petitioner's service was regularized vide order dated

12.12.2012. It is contended that regularization of

services of the petitioner was made subject to condition // 11 //

that the pension would be guided as per provisions of

OCS (Pension) Rules, 1992 in pursuance of Finance

Department letter No.17114 (255) pen-7/07/F dated

04.04.2007. It is further contended that once regular

appointment has been made with the above condition,

now the opposite parties cannot turn around and

contend that the petitioner has not completed 10 years

of service, and that his appointment was on contractual

basis prior to 01.01.2005 and, therefore, he is not

entitled to be covered under the OCS (Pension) Rues,

1992. This is absolutely misconceived one. Therefore,

interference of this Court is warranted.

To substantiate his contentions, he has relied

upon the judgment in Harbans Lal v. State of Punjab

(CWP No.2371 of 2010 decided on 31.08.2010), which

has been upheld by the apex Court dismissing SLP

(C)...CC No.17901 of 2011 [SLP (C)...CC No.11570 of

2012] vide order dated 30.07.2012 and subsequently

dismissing the Review Petition (C) No.2038 of 2013

arising out of SLP (C) )...CC No.11570 of 2012.

// 12 //

4. Mr. M. Balabantaray, learned Standing

Counsel for the State raised a preliminary objection

with regard to maintainability of the writ petition on

account of non-joinder of proper party. He, however,

contended that the Finance Department notification

dated 17.09.2005 is not applicable to the contractual

employees, inasmuch as OCS (Pension) Rules, 1992 is

applicable to regular State Government employees. The

OCS (Pension) Rules, 1992 has been amended and

Orissa Civil Services (Pension) Amendment Rules, 2005

came into force w.e.f. 01.01.2005. Therefore, since the

petitioner's services have been regularized w.e.f.

12.12.2012, i.e. much after 01.01.2005, the petitioner

is not entitled to be covered under the OCS (Pension)

Rules, 1992 and GPF (Odisha) Rules, 1938. It is further

contended that regular appointment of the petitioner,

being made on 12.12.2012, he is covered under Orissa

Civil Services (Pension) Amendment Rules, 2005.

Consequentially, he is not entitled to get any pension as // 13 //

per OCS (Pension) Rules, 1992 and seeks for dismissal

of the writ petition filed by the petitioner.

5. This Court heard Mr. S.N. Patnaik, learned

counsel for the petitioner and Mr. M. Balabantaray,

learned Standing Counsel for the State. Pleadings have

been exchanged between the parties and with the

consent of learned counsel for the parties the writ

petition is being disposed of finally at the stage of

admission.

6. Before delving into the merits, it is

worthwhile to deal with at the outset the preliminary

objection raised by Mr. M. Balabantaray, learned

Standing Counsel for the State as to whether the writ

petition is maintainable due to non-joinder of proper

party. His specific contention is that the petitioner

though sought to challenge the order dated 12.01.2015,

he has not made the Accounts Officer, Odisha, who has

issued such order, as a party to the writ petition, and // 14 //

therefore, for non-joinder of proper party, the writ

petition is liable to be dismissed.

Mr. S.N. Patnaik, learned counsel appearing

for the petitioner contended that the petitioner has

impleaded Principal Accountant General (A&E), Odisha

as opposite party no.3, from whose office the impugned

communication dated 12.01.2015 was issued. The

Accounts Officer, Odisha, being the officer concerned,

has only communicated the letter of cancellation of GPF

account numbers of those employees, who were

working under contractual basis prior to 01.01.2005

and regularized after 01.01.2005. Thereby, the

objection raised by the learned Standing Counsel for

the State cannot sustain in the eye of law.

Having considered the contentions raised by

learned counsel for the parties, this Court finds

sufficient force in the contention of learned counsel for

the petitioner. As a matter of fact, the impugned

communication dated 12.01.2015 was issued from the // 15 //

office of the Principal Accountant General (A&E),

Odisha, whom the petitioner has arrayed as opposite

party no.3 in this writ petition. The Accounts Officer,

Odisha, being the officer concerned, has only

communicated the said letter. In such circumstance,

the objection raised by the learned Standing Counsel

for the State, that the writ petition should be dismissed

for non-joinder of party, is overruled and the writ

petition is held to be maintainable.

7. Now, coming to the merits of the case, on the

basis of the undisputed factual matrix delineated

above, the only question to be considered by this Court

as to whether, in view of the conditional appointment

made on 12.12.2012 vide Annexure-2 putting a

condition under clause-1 that the pension will be

guided as per provision of OCS (Pension) Rules 1992 in

pursuance to Finance Department Letter

No.17114(255)-Pen-7/07/F dated 04.04.2007, the

impugned order under Annexure-7, so far as petitioner

is concerned, will sustain or not.

// 16 //

8. In order to effectively answer the above

question, it is pertinent to recapitulate that admittedly

the petitioner was appointed initially as an Attendant

(Class-IV) on 44 days basis and his appointment was

due to urgent need of the medical institution and under

the need of the situation and, as such, his work and

conduct as Class-IV is satisfactory. His services, as a

Class-IV employee, appear to be essentially in public

interest and need. The petitioner had completed 10

years of service, by the time regularization order was

passed on 12.12.2012, excepting a small interruption

from 16.08.2000 to 07.12.2001, as per the need of the

situation. However, by virtue of the interim orders

passed by the tribunal, he had completed more than 10

years of service in Class-IV post and managed the need

of the institution satisfactorily. By virtue of direction of

the tribunal, as mentioned above, his service record

was verified and on being satisfied, that he had

completed 10 years of service, his services were

regularized as he was working against the sanctioned // 17 //

post with scale of pay admissible to the post. As such,

the order dated 12.12.2012 regularizing the services of

the petitioner was passed, in compliance of the

direction given by the tribunal, and the said order is a

conditional one that the pension will be guided as per

provision of OCS (Pension) Rules, 1992 in pursuance to

Finance Department Letter No.17114(255)-Pen-7/07/F

dated 04.04.2007. It is true, by the time the order dated

12.12.2012 under Annexure-2 was passed, Odisha Civil

Services Amendment (Pension) Rules, 2005 had already

come into force w.e.f. 01.01.2005. By applying the

same, it was construed that the petitioner being a

contractual appointee, the OCS (Pension) Rules 1992 is

not applicable, in view of clarification issued on

04.04.2007. That itself is a misconceived one. The

reason being, while issuing the order dated 12.12.2012

under Annexure-2, the authority knowing fully well that

the order dated 16.04.2012 was passed by the tribunal

in O.A. No.1246(C) of 2001 and subsequent instruction

issued by the Government dated 05.12.2012, passed // 18 //

the order of regularization applying the OCS (Pension)

Rules, 1992 in favour of the petitioner. Therefore, the

authority subsequently cannot turn around and state

that by the time letter dated 12.12.2012 was issued,

the petitioner had not completed 10 years of service.

9. Further, once it has been specifically

mentioned, vide letter dated 12.12.2012, that the

petitioner having completed 10 years of service with a

small interruption from 16.08.2000 to 07.12.2001, and

that by then under the need of the situation and by

virtue of order of the tribunal the petitioner having

completed 10 years and more service in Class-IV, his

services have been regularized conditionally stating that

the pension will be guided as per provision of OCS

(Pension) Rules, 1992, in pursuance of Finance

Department letter dated 04.04.2007. The subsequent

letter dated 29.11.2013 under Annexure-6 issued by

the Finance Department, with regard to clarification on

applicability of New Pension Scheme in case of

contractual employees appointed prior to 01.01.2005 // 19 //

and brought over to regular establishment after that

date, as well as the letter dated 12.01.2015 under

Annexure-7 cannot sustain in the eye of law as the

same is hit by principle of estoppel.

10. In Black's Law Dictionary, 7th Edn. at

page 570 'estoppel' has been defined to mean a bar

that prevents one from asserting a claim or right that

contradicts what one has said or done before or what

has been legally established as true,

11. In B.L. Sreedhar v. K.M. Munireddy, (2003)

2 SCC 355 (365) it has been held by the apex Court that

'estoppel' is based on the maxim allegans contrarir non

est audiendus (a party is not to be heard contrary) and

is the spicy of presumption juries et de jure (absolute, or

conclusive or irrebuttable presumption) The said

judgment has been relied on by the apex Court in H.R.

Basavaraj v. Canara Bank, (2010) 12 SCC 458 (469).

12. It has been clarified in the case of H.R.

Basavaraj mentioned supra that in general words, // 20 //

'estoppel' is a principle applicable when one person

induces another or intentionally causes the other

person to believe something to be true and to act upon

such belief as to change his/her position. In such a

case, the former shall be estopped from going back on

the word given. The principle of estoppel is only

applicable in cases where the other party has changed

his positions relying upon the representation thereby

made.

13. The principle of promissory estoppel has been

considered by the apex Court in Union of India v. M/s.

Anglo Afghan Agencies etc., AIR 1968 SC 718;

Chowgule & Company (Hind) Pvt. Ltd. v. Union of

India, AIR 1971 SC 2021; M/s Motilal Padampat

Sugar Mills Co. Ltd. v. The State of Uttar Pradesh,

AIR 1979 SC 621; Union of India v. Godfrey Philips

India Ltd., AIR 1986 SC 806; Delhi Cloth & General

Mills Ltd. v. Union of India, AIR 1987 SC 2414; and // 21 //

Bharat Singh v. State of Haryana, AIR 1988 SC 2181

and many other subsequent decisions also.

A Division Bench of this Court had taken

into consideration the above principles in M/s Balasore

Alloys Ltd. v. State of Odisha, 2019 (I) ILR-CUT-214.

14. Similar question had come up for

consideration before the Pubjab & Haryana High Court

in Harbans Lal (supra) and the a Division Bench, while

deciding the said case on 31.08.2010, held as follows:-

"16. From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Re-structured Defined Contribution Pension Scheme (Annexure P-1) has been introduced for the new entrants in the Punjab Government Service w.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the Punjab Civil Services Rules, cannot be further amended by issuing clarification/instructions dated 30.05.2008 (Annexure P-3). The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004.

17. In view of the above, the writ petition is allowed. Accordingly respondents are directed to treat the whole period of work charge service as // 22 //

qualified service for pension because accordingly to clarification issued on 30.05.2008 (Annexure P-3), the new defined Contributory Pension Scheme would be applicable to all those employees who have been working prior to 1.1.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably within a period of three months from the date of receipt of copy of this order."

The aforesaid judgment of the Punjab & Haryana High

Court was challenged before the apex Court by the

State of Punjab in SLP (C) CC No.11570 of 2012, which

was dismissed vide order dated 30.07.2012. Again,

Punjab & Haryana Government filed Review Petition

No.2038 of 2013, which was also dismissed, thereby

confirming the order passed by the Division Bench of

the Punjab & Haryana High Court.

15. In view of such position, there is no iota of

doubt to come to a conclusion that the petitioner is

covered by the conditional regularization order dated

12.12.2012 to the extent that the pension will be