WP(C)/27950/2019
2021 Latest Caselaw 1231 Ori

                                   W.P.(C) No.27950 of 2019




8.     03.02.2021         This matter is taken up through video conferencing.
                          Heard learned counsel for the parties.
                    3.    By way of this Writ Petition, the petitioner has challenged
                    the order dated 18.06.2018 passed by the learned State
                    Administrative   Tribunal,     Cuttack   Bench,   Cuttack   in   O.A.
                    No.2348 (C )of 2009. The petitioner has further prayed for a
                    direction to the opposite parties to sanction the pension in favour
                    of the petitioner forthwith.
                    4.    The case of the petitioner is that he joined in work-charged
                    establishment as Work Sarkar under Southern Irrigation Circle,
                    Berhampur on 01.02.1963 and subsequently given promotion as
                    Junior Store Keeper in the office of the Executive Engineer,
                    Badanala Irrigation Division, Kenduguda in the district of
                    Rayagada. While working as such, he was superannuated from
                    service on 28.02.1999. He had completed 36 years and one
                    month as work-charged employee. Since after his retirement, he
                    was denied the pension on the ground that he has not been
                    brought over to the regular establishment, he filed O.A. No. 1476
                    (C) of 2007 before the Orissa Administrative Tribunal, Cuttack
                    Bench. The said O.A. was disposed of on 19.07.2007 directing
                    the opposite party no.2 to treat the copy of the paper book as
                    representation and to take a decision in the matter. However, the
                    opposite party no.2 vide order dated 03.01.2008 rejected the
                    claim of the petitioner for grant of pension on the ground that
                    there is no provision under work charged rule for payment of
                    pension to work charged employee. The petitioner challenged the
                    same in O.A. No. 2348 (C) of 2009. However the said O.A. was
                    dismissed vide order dated 18.06.2018 on the ground of
Arun
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limitation. The petitioner challenged the same in the present writ
application.
5.     It appears that such an issue was earlier before this Court
in W.P.(C) No.8666 of 2004. In the said writ application the
petitioner, who       was a       work   charged employee        had   also
challenged the order dated 04.08.2003 passed by Odisha
Administrative Tribunal, Cuttack in O.A. No. 2782 (C) of 1997,
wherein the Tribunal instead of giving any direction towards
pensionary benefits directed the authorities to prepare proper
scheme and consider the case of the petitioner for regularization
and other consequential benefits.
6.     The said writ application was disposed of on 06.05.2004.
In paragraph-4 of the said order, it has been observed as
follows:-
               "In respect of work charged establishment the
     Government of Orissa vide Finance Department Office
     Memorandum No.5483/F dated 6th March, 1990 decided that
     consequent upon absorption of work charged employees in
     the corresponding post created in regular establishment, the
     period    of   service   rendered    by   him   in   work    charged
     establishment, shall count towards pensionary benefits
     under the Orissa Pension Rules, 1977 subject to the
     condition that the employees so absorbed should have served
     continuously for a minimum period of five years in the work
     charged establishment. This decision was not followed by the
     subordinate authorities. Thus, the fate of the work charged
     employees who rendered a quite good years of service
     remained in dark. xxx xxx xxx."
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      Accordingly the said writ application was allowed and
direction was given to absorb the petitioner in any establishment
post from the time he completed five years continuous service till
the date he retired from service and thereafter his pension and
other pensionary benefits shall be granted on the basis of
notional fixation of pay in regular establishment as has been
granted to the applicants in O.A. No. 622 of 1999 and other
cases as reflected in the said order of this Court. The order
passed by this Court, was confirmed by the Apex Court in Civil
Appeal No. 5575 of 2007 dated 22.07.2015.
7.    Such was the issue in case of one Narusu Pradhan, a work
charged employee, wherein after the order passed by the Hon'ble
Apex Court in S.L.P No. 22498 of 2012, the authorities passed an
office order on 08.05.2013 by creating supernumerary post,
regularized his service for the purpose of sanctioning pension.
8.    This Court had also occasion to deal with this issue again
in W.P.(C) No. 1534 of 2008, i.e. in the case of State of Orissa
and others v. Jyostna Rani Patnaik and others, wherein
direction of the Tribunal to regularize the service of the
applicant's husband by way of creating a supernumerary post, if
necessary from the time he had completed 5 years of service as
work-charged    employee    by   bringing   him   over   to   regular
establishment was challenged before this Court by the State
authorities. The said case was disposed of vide judgment dated
19.12.2016

, affirming the view expressed by the Tribunal.

9. Learned counsel for the petitioner submitted that in similar matter bearing O.A. No. 70(8) of 1997 in case of Duryodhan Mohanty and others and O.A. No.622 of 1999, in

which same point of law was under challenge and the learned Tribunal was pleased to allow the O.A and directed that the applicants shall be absorbed in any establishment posts from the time they completed five years of continuous service till the date when they retired from service. After such absorption, their pension and other pensionary benefits shall be computed on the bass of notional fixation of pay on the regular establishment by adding annual increments which fell due. The said common order passed by the Tribunal was challenged by the petitioner before this Court in W.P.(C ) No.8666 of 2004. Vide judgment dated 6.5.2004, this Court allowed the said Writ Petition by citing a decision in the case of (State of Orissa v. Chaitanya Gouda and five others), with the observation/direction as quoted above. Therefore, the petitioner is entitled to the benefit of pension, gratuity and other retrial benefits. Learned counsel for the petitioner submitted that the petitioner has submitted several representations to be brought over to regular establishment entitling him to claim pension and pensioanry benefits, but his grievance has not been redressed, even through the Finance Department has issued specific resolutions in this regard on 22.01.1965 and also the Works Department in his letter dated 25.05.1997 and Circular dated 27.09.1980 for regularization of services of such employees.

10. It was also brought to the notice of this Court about the order dated 02.04.2018 passed in OJC No. 12017 of 2000, wherein it has been observed/ directed as follow:-

Having heard learned counsel for the parties and on perusal of the record, more particularly the order impugned

herein, it appears that the Government in Finance Department vide resolution dated 22.01.1965 decided for absorption of such employees to regular establishment after completion of five years in the Work Charged Establishment. Subsequently vide memorandum dated 06.03.1990, Finance Department has also extended the pensionary benefit to work charged employees. Learned Tribunal in O.A. No. 2389 of 1997 vide order dated 23.02.1999 has already disposed of a case of similar nature. Even learned Tribunal has gone on to adjudicate one dispute in O.A. No. 1819 of 1996 regarding extension of pensionary benefit to such work charged employees, who have already retired. The plea of Additional Government Advocate to the effect that the opposite party could not have been brought over to regular establishment, as there was no vacancy, is not sustainable in law, as it has already been held in a catena of decisions that even if there is no clear vacancy, a work charged employee can be brought over to regular establishment for at least one day by creating a supernumerary post to make him entitled for pensioanry benefit.

In view of the above, we modify the order of learned Tribunal to the extent that the opposite party shall be brought over to the regular establishment for at least one day by creating a supernumerary post, if necessary and accordingly, he shall be extended with the pensionary benefit as would be admissible to him. The entire exercise shall be completed within a period of two months hence.

11. It was also contended that relying on such decision, may other writ petitions, such as OJC No. 12017 of 2000 (decided on 16.04.2019), W.P.(C) No. 12017 of 2000 (decided on 16.04.2019) have also been disposed of.

12. In view of the above, this writ petition is disposed of in terms of the observations/ directions given in aforementioned cases. Accordingly this Court directs that the petitioner should be treated to have been regularized in service at least one day prior to his superannuation, by creating supernumerary post, if necessary and accordingly he shall be extended with the pensionary benefits as would be admissible to him. The entire exercise shall be completed within a period of two months from the date of receipt of the copy of this order.

Learned counsel for the parties may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No. 4587 dated 25.03.2020.

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S. Panda, J.

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S.K.Panigrahi, J.