WP(C)/38771/2020
2021 Latest Caselaw 1233 Ori

                                    W.P.(C) No.38771 of 2020




3.   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 12.04.2019 passed by the learned State
                  Administrative Tribunal in O.A. No.1393 of 2009. The petitioner
                  has further prayed for a direction to the opposite parties to
                  sanction the pension in favour of the petitioner.
                  4.    The case of the petitioner is that he joined as NMR on
                  01.04.1982 and has been brought over to work charged
                  establishment on 11.02.2011 and superannuated from service
                  on 30.04.2019. According to him, though he has worked for
                  more than 5 years in work charged established, but his service
                  has not been regularized, as a result of which after his
                  retirement he will not entitled to get pension. Accordingly before
                  his retirement,      he filed O.A. No. 1393. The said O.A. was
                  disposed of on 12.04.2019 directing the opposite parties to
                  consider the grievance of the petitioner treating the paper book
                  as his representation. According to the petitioner, instead of
                  directing   the    opposite   parties   to   bring   him   to   regular
                  establishment at least one day before his retirement and
                  thereafter to release the pension in favour of the petitioner, the
                  Tribunal since has directed the opposite parties to consider the
                  greiance, therefore, till date, the petitioner is not able to get any
                  pension. Therefore, he challenged such order of the Tribunal 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
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       the petitioner, who was a work charged employee had also
Arun
       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."
              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
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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.