Orissa High Court

Judhistir Padhy vs State Of Odisha & Others on 19 April, 2022

                  ORISSA HIGH COURT: CUTTACK

                    WPC (OAC) No.2276 OF 2012

      (An application under Articles 226 and 227 of the
      Constitution of India)
                             ---------------

      Judhistir Padhy                      .....        Petitioner


                                    -Versus-

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


      Advocate(s) appeared in this case:-
      _________________________________________________________
      For Petitioner       :    M/s. Subrat Mishra,
                                R.K. Pradhan & G.C. Mohanty,
                                Advocate

      For Opp. Parties     :    Mr. H.K. Panigrahi,
                                Additional Standing Counsel
      _______________________________________________________

           CORAM
              JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

19th April, 2022

SASHIKANTA MISHRA, J. The sole point that arises for

consideration in this case is whether a job contract

worker, whose services have been brought over to the

regular establishment, is entitled to pension by taking into

account the entire period of service rendered by him in the

job contract establishment.

2. The facts of the case are that the petitioner was

engaged as General Mohorior Grade-I in job contract

establishment under the control of Deputy Director,

Consolidation, Berhampur (opposite party no.4) on

27.09.1997. After rendering service for 28 years 6 months

and 7 days as such he was brought over to the regular

establishment on 04.04.2006 and appointed as Junior

Clerk in the office of Sub-Collector, Bhanjanagar. The

petitioner retired from Government Service on 31.05.2012

upon attaining the age of superannuation. Though he was

granted provisional pension, the same was calculated

considering the period of service in the regular

establishment only, i.e. from 04.04.2006 till 31.05.2012.

His entire service in the job contract establishment was

not taken into consideration. Challenging such erroneous

calculation of pension, the petitioner had filed the O.A.

before the erstwhile Odisha Administrative Tribunal

which, on transfer is registered as the present writ

petition, seeking direction to the opposite parties to count

the past service rendered in the job contract establishment

for 28 years 6 months and 6 days as qualifying service

along with other pensionary benefits and gratuity.

3. A counter affidavit has been filed by opposite

party no.1, wherein reference has been made to the

judgment of a Division Bench of this Court rendered on

24.03.1992 in OJC No. 2147 of 1991, wherein it was held

that in order to calculate the pensionary benefit of such

employees, so much of their earlier service period shall be

reckoned so as to make them eligible for pension. Further

reference has been made to another judgment rendered by

another Division Bench of this Court on 07.02.2019 in

W.P.(C) No. 11503 of 2003, wherein the principle laid

down in the aforesaid earlier judgment was reiterated.

Some other judgments of the erstwhile Odisha

Administrative Tribunal passed in O.A. No. 390 (C)/2008

and batch, O.A. No. 174(C) of 2006 and O.A. No.

1828/2004 and batch have been referred to. It is also

stated that the relief sought for by the petitioner is

contrary to the provisions of OCS (Pension) Rules, 1992.

Separate counter affidavit has been filed by

opposite party no.5 referring to the Finance Department

Memorandum No.49296 dated 12.12.1997 to justify the

action of adding only four years of service of the petitioner

under the job contract establishment to six years of

regular service rendered by him to make him eligible to get

minimum pension.

4. A rejoinder has been filed by the petitioner in

response to the counter affidavit filed by opposite party

no.1. In the said rejoinder, the petitioner has referred to

the order of the Odisha Administrative Tribunal passed on

21.10.1994 in T.A. No. 11 of 1993, wherein the concerned

authority was directed to count the past service rendered

in job contract establishment towards pension and

pensionary benefits. The said judgment was challenged

before the apex Court in S.L.P.(C) No. 13916 of 1995 by

the State but the same was dismissed vide order dated

17.07.1995. It is therefore, stated that the judgment

passed by the Division Bench of this Court in the year

1992 no longer holds good. The petitioner has also

referred to an order of the learned Tribunal in O.A. No.

3020 (C) of 2003 passed on 04.01.2004, wherein similar

direction was issued. The said order was challenged by the

State before this Court in W.P.(C) No. 14244 of 2006,

which was dismissed vide order dated 09.04.2014. The

state further challenged the said order before the Apex

Court in S.L.P.(C) CC No. 12573 of 2015 but the same was

also dismissed vide order dated 13.07.2015 on merit as

well as on the ground of limitation. It is stated that the

State has since implemented the order passed by the

Tribunal as affirmed by this Court as well as the Apex

Court.

5. Heard Mr. S. Mishra, learned counsel for the

petitioner and Mr. H.K. Panigrahi, learned Addl. Standing

Counsel for the State.

6. Reiterating the facts stated in the writ petition as

well as the rejoinder, it is submitted by Mr. Mishra that

the highest Court of the land having affirmed the order

passed by the Tribunal as well as this Court, nothing

further remains to be adjudicated. Mr. Mishra has also

relied upon the order dated 07.03.2022 passed by a

Division Bench of this Court in W.P.(C) No. 3443 of 2019,

wherein taking note of the dismissal of the appeals filed by

the State before the Apex Court ( SLP(C) No. 13916/1995

and SLP(C) No. 12573 of 2015) against the orders passed

by the Tribunal (in T.A. No. 11 of 1993 and O.A. No. 3020

2006), the aforementioned cases were disposed of directing

the authorities to extend all such benefits in favour of the

petitioner therein in terms of such directions. Mr. Mishra

has also relied upon two judgments passed by a

coordinate Bench of this Court in WPC(OAC) No. 1867 of

2007 and WPC(OAC) No. 607 of 2009. On such basis it is

argued by Mr. Mishra that the State has no option but to

follow the directions contained in the judgment passed by

the Tribunal in T.A. No. 11 of 1993 and O.A. No. 3020(C)

of 2003 as affirmed by this Court and the Apex Court.

7. Per contra, Mr. H.K. Panigrahi, learned State

Counsel has emphatically argued that the decisions cited

by the petitioner do not apply to the case at hand because

the effect of the provision under Sub-Rule(6) of Rule-18 of

OCS(Pension) Rules, 1992 has not been taken into

consideration therein. According to Mr. Panigrahi, there

being a specific statutory rule governing the case of job

contract employees who are specifically brought over to

the regular establishment, the same shall govern the field

and any decision rendered without reference to the said

rule should be held as per incuriam.

8. As has already been narrated, both parties have

relied upon several decisions in support of their respective

stands and in addition, the State has referred to the

statutory rule. It would therefore be in the fitness of things

to examine the decisions so as to consider the applicability

thereof to the case at hand.

As it appears, the first decision is the one

rendered by a Division Bench of this Court in the case of

Settlement Class-IV Job Contract Employees Union,

Balasore- Mayurbhanj District vs. State of Orissa and

others, (OJC No. 2147 of 1991) reported in 1992 SCC

OnLine Ori 296. A reading of the said decision reveals that

the petitioner-Union had moved this Court seeking

regularization of services of its members, who were job

contract workers employed in connection with Survey and

Settlement work. While allowing the prayer for

regularization, the Division Bench held as follows in

respect of their pensionary benefits;

"This apart, for the purpose of calculating the pensionary benefit, so much of their earlier service period shall be reckoned, even if there had been breaks in their employment, so as to make them eligible for pension."

Then came the judgment passed by the learned

Tribunal on 21.10.1994 in T.A. No. 11 of 1993 by referring

to Rule- 23 of the Odisha Pension Rules wherein it was

held that the same does not prohibit counting of past

services rendered in the job contract establishment and

that as provided under Sub-Rule (3) of Rule-23, the

Government has ample power notwithstanding the

restrictions contained in Sub-Rule(1) of Rule-23 to order

the periods rendered under work charged establishment or

the periods in which an employee is paid from the

contingences for counting towards pension and

pensionary benefits. Accordingly, the Tribunal granted

necessary relief to the applicants before it. The said order

was carried in appeal by the State to the Apex Court in

SLP(C) No. 13916 of 1995 but the same was dismissed.

Further, the learned Tribunal in a later order

rendered on 14.01.2004 in the case of Nityananda Biswal

vs. State of Orissa & others (O.A. No. 3020(C) of 2003)

by relying upon its earlier judgment in T.A. No. 11 of 1993

held that the period of engagement in the job contract

establishment should be taken into account as qualifying

service. The said judgment was challenged by the State

before this Court in W.P.(C) No. 14244 of 2006, which

came to be dismissed vide order dated 09.04.2014 passed

by a Division Bench by referring to the judgment of the

Tribunal passed in T.A. No. 11 of 1993, which was

confirmed by the Hon'ble Supreme Court in SLP(C) No.

13916 of 1995.

9. Much later, a Division Bench of this Court in

W.P.(C) No. 11503 of 2003 held as follows:

"In our considered opinion, the earlier judgment, which is well-reasoned, holds the field as the

subsequent decision in W.P.(C) No. 14244 of 2005 had not referred to the same. Opposite parties will be given benefits only on the basis of earlier Division Bench judgment in OJC No. 2147 of 1991 decided on 24.03.1992, thereby the past period of service of the opposite parties, which is required only to make them eligible for pension, shall be taken into consideration."

The other judgments cited by the parties such as

WPC(OAC) No.3443 of 2019 (Division Bench) and

WPC(OAC) No. 1576 of 2007 (Single Bench) and WPC(OAC)

No. 607 of 2009 (Single Bench) also referred to the order of

the Tribunal in T.A. No. 11/1993, which was confirmed by

dismissal of the SLP filed against it by the Apex Court as

also the order in O.A. No. 3020 (C) of 2003 as confirmed

by this Court in W.P.(C) No. 14244 of 2006 and by the

Apex Court in SLP(C) No. 12573 of 2015.

10. From the above narration, it becomes evident that

there are conflicting Division Bench judgments of this

Court on the issue at hand. While the judgment passed in

OJC No. 2147 of 1991 and W.P.(C) No.11503 of 2003 lay

down that only so much of the service rendered under job

contract establishment shall be reckoned as would be

necessary for qualifying service for pension, the other

Division Bench judgments have referred to the order of the

Tribunal passed in T.A. No. 11/1993 and O.A. No. 3020

the apex Court. It therefore becomes imperative to

examine the order passed in T.A. No. 11 of 1993 and O.A.

No. 3020(C) of 2003 because the same form the

foundation of all the other subsequent judgments referred

to hereinbefore.

11. In so far as the T.A. No. 11 of 1993 is concerned,

the same was filed by one Bhagaban Pattanayak, who was

appointed as an Amin on 01.12.1955 in Ganjam-Koraput

Major Settlement in the job contract establishment. He

continued as such till 27.08.1964 when he was brought

under the regular establishment. He retired from

Government Service on 31.08.1988 on reaching the age of

superannuation. He approached the learned Tribunal with

the grievance that the period under job contract

establishment should be taken into account for the

purpose of pension and other pensionary benefits. Learned

Tribunal on a reference to Rule 23 of the Orissa Pension

Rules, held that there is no mention therein about a job

contract employee being subsequently brought to the

regular establishment. It was further held that if an

incumbent is appointed in the job contract establishment

and retired from service as such, he being paid from

contingencies, the period of such service shall not qualify

for pension. As such, the learned Tribunal held that for

those job contract employees who have been brought over

to the regular establishment, the pension rules does not

prohibit counting of past services rendered in the job

contract establishment. Thereafter relying upon Sub-

Rule(3) of Rule 23, learned Tribunal held that there is

ample power of the Government notwithstanding the

restrictions made in Rule 23(1) to order the periods

rendered under the work charged establishment or the

periods in which an employee is paid from the

contingencies from being counted towards pension and

pensionary benefits. Learned Tribunal though referred to

the decision of this Court in OJC No. 2147 of 1991, yet

directed the authorities to count the past services

rendered by the petitioner in job contract establishment

towards pension and pensionary benefits. As already

stated, the aforesaid judgment of the Tribunal was

challenged by the State before the Hon'ble Supreme Court

in SLP (C) No. 13916 of 1995, but the same was dismissed

vide order dated 17.07.1995.

In so far as the order passed in O.A. No. 3020(C)

of 2003 is concerned, learned Tribunal allowed the prayer

of the petitioner entirely relying upon its earlier order

passed in T.A. No. 11 of 1993. The said order, as already

stated, was also challenged by the State before this Court

in W.P.(C) No. 14244 of 2006, which was dismissed vide

order dated 09.04.2014 and thereafter before the Hon'ble

Supreme Court in Special Leave to Appeal (C) CC No.

12573 of 2015, which was also dismissed vide order dated

13.07.2015 on the grounds of delay as well as on merits.

12. What is relevant to note is that in T.A. No.

11/1993, learned Tribunal relied upon Rule-23 of the

extant Rules that is, Odisha Pension Rules 1977 (in short,

the 1977 Rules). Of course by the time of passing of the

order that is, 12.04.1994 the 1977 Rules had already been

repealed upon coming into force of the new Rules that is,

Odisha Civil Services (Pension) Rules, 1992 (in short, the

1992 Rules) w.e.f. 01.04.1992. Rule 116(1) of the 1992

Rules is relevant in this regard, and is therefore quoted

herein below:

"116. Repeal and Saving - (1) On the commencement of these Rules, the Odisha Pension Rules, 1977, and orders including Office Memorandum issued thereunder and in force immediately before such commencement shall cease to operate. (2) Notwithstanding such cessation -

(a) xxx

(b) xxx

(c) any case which pertains to the sanction of pension to a Government servant who had retired before the commencement of these rules and is pending before such commencement shall be disposed of in accordance with the provisions of the old rules as if these rules had not been made;"

As already stated, the applicant in TA No. 11 of

1993 was an employee who retired from government

service on 31.08.1988 that is, prior to coming into force of

the 1992 Rules and therefore his claim for pension was

governed under the 1977 Rules, which the learned

Tribunal appears to have relied upon.

In so far as the order passed by the Tribunal in

OA NO. 3020 (c) of 2003 is concerned, it is not

forthcoming from the order passed therein as to when the

concerned employee had retired. Nevertheless, the

Tribunal passed the order entirely relying upon the order

passed in TA No. 11 of 1993.

At this stage, it must be pointed out that in the

case at hand, the petitioner retired from government

service on 31.05.2012 and hence, his case is to be

considered as per the 1992 Rules.

13. It is also relevant to note that originally there was

no provision in the 1992 Rules specifically governing the

case of a job-contract employee who had been

subsequently brought over to the regular establishment.

However, an amendment was effected on 01.09.2001 to

the said Rules, whereby, sub-rule-(6) was inserted in Rule-

18 vide notification no. 45865/F dated 01.09.2001. sub-

rule (6) reads as follows:

"18. Conditions subject to which service qualifies-

Xx xx xx (6) Notwithstanding anything contained in clause (i) &

(iii) of sub-rule (2), a person who is initially appointed in a job contract establishment and is subsequently brought over to the post created under regular / pensionable establishment, so much of his job contract service period shall be added to the period of his qualifying service in regular establishment as would render him eligible for pensionary benefits."

Thus, a specific provision was enacted to govern

the cases of such employees. From the language employed

in sub-rule (6) it is evident that the decision of this Court

in OJC No. 2147 of 1991 was followed in toto by the

Government. In fact, the very words used by this Court in

the aforesaid decision appear to have been employed in

the amended sub-rule.

Such being the factual position, it is evident that

the order passed by the Tribunal in TA No. 11 of 1993 and

followed in OA No. 3020 (c) of 2003 can have no

application whatsoever to the case at hand.

All the other judgments of this Court referred to

hereinbefore passed subsequently have referred to the

order of the Tribunal in T.A. No. 11 of 1993 and O.A. No.

3020(C) of 2003 as confirmed by the apex Court, but as

stated above, the petitioner in the instant case being

governed by the provisions of the 1992 Rules, the said

judgments cannot be applied to the case at hand as it

would be de hors sub-rule (6) of Rule-18 as quoted

hereinbefore.

14. To sum up, it is stated at the cost of repetition

that what the Division Bench of this Court in OJC No.

2147 of 1991 had held way back on 24.03.1992 was

crystallized as sub-rule (6) of Rule-18 on and from

01.09.2001. This Court therefore, is of the humble view

that the judgments passed by this court in W.P.(C) No.

14244 of 2006, WPC(OAC) No. 3443 of 2019, WPC (OAC)

No. 1567 of 2007 and WPC(OAC) No. 307 of 2009, relied

upon by the petitioner, cannot be applied to the case at

hand as the same were passed referring to the orders of

the Tribunal passed in TA 11 of 1993 and OA 3020 (c) of

2003 as confirmed by the Apex Court but not with

reference to sub-rule (6) of Rule 18 of the 1992 Rules,

which squarely applies to the facts of the present case.

It is thus seen that as per the sub-rule (6) of Rule-

18 only so much of the job contract service period shall be

added to the period of qualifying service in regular

establishment as would render the employee eligible for

pension. Resultantly, the claim of the petitioner for

counting the entire period of service in the job contract

establishment towards pension and pensionary benefits,

strictly speaking, has no legs to stand having regard to the

provision under sub-rule(6) of Rule-18 of the 1992 Rules.

13. A strict interpretation of the statutory provision as

it exists leaves little scope for the Court to grant the

desired relief to the petitioner. It is the settled position of

law that no direction can be issued by the Court to the

authority to do something contrary to law. Reference in

this regard may be had to the decision of the Apex Court

in the case of Hope Textiles Ltd. vs. Union of India,

reported in (1995) Supp.(3) SCC 119. Undoubtedly, the

relevant provision is valid and hence, holds the field.

However, fact remains that basing on the

judgments referred to hereinbefore, all of which have been

implemented by the Government as stated at the bar

notwithstanding the relevant provision, several similarly

placed employees have been granted the benefit in that

their past service rendered under the job contract

establishment has been counted towards qualifying

service for pension along with the period under regular

pensionable establishment.

The fact that the judgments referred to

hereinbefore were rendered without reference to the sub-

rule (6) of Rule 18 of the 1992 Rules do not appear to have

been agitated by the Government before this Court or the

apex Court at any point of time. As a result, a peculiar

position has emerged in that several employees have been

granted the benefit of counting of their entire past services

while others like the petitioner, who stand on similar

footing, are deprived of such benefit. Undoubtedly, this

would cause great hardship to such employees. While this

Court is fully conscious of the legal position that no

direction can be issued de hors the statutory provision, yet

fact remains that the statute also confers upon the

Government wide powers to undo any hardship caused by

any of its provisions, namely, the power of relaxation of

the provisions under certain circumstances. The 1992

Rules contains a provision to such effect, i.e. Rule 114,

which reads as follows:

"114.Power to Relax - Where the Governor is satisfied that the operation of any of the provisions of these rules causes undue hardship in any particular case, he may, by order, for reasons to be recorded in writing, dispense with or relax the requirements of the said provision to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. Provided that no such order of relaxation shall be made except with the prior consultation of the Finance Department."

14. In view of the fact that several employees have

been given the benefit, depriving the petitioner therefrom

would certainly cause undue hardship to him. This is

therefore, a fit case where the Government may consider

relaxing the provisions i.e., sub-rule(6) of Rule 18 to grant

the desired relief to the petitioner.

The Government may also consider the fact that

the number of job contract employees who are

subsequently brought over to the regular establishment is

fixed and finite and therefore, there may not be any

recurring drain on the exchequer if similar relief is granted

to all such employees without any discrimination.