Niranjan Panigrahi vs State Of Odisha And Others
2022 Latest Caselaw 7099 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P.C (OAC) No. 2103 of 2016
    An application under Sections 19 of the Administrative Tribunal
    Act, 1985.
                                 ---------------

      Niranjan Panigrahi     ......                            Petitioner

                                    -Versus-

      State of Odisha and others              .......      Opp. Parties
      Advocate(s) appeared in this case :-
      _______________________________________________________
         For Petitioner    : M/s. Sashi Bhusan Jena &
                             S. Behera, Advocates
         For Opp. Parties : Mr. N.K.. Praharaj,
                            Additional Government Advocate
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                           JUDGMENT

6th December, 2022 SASHIKANTA MISHRA, J.

The petitioner being a Diploma Holder in

Electrical Engineering was appointed as the Additional

Sub-Assistant Engineer by order dated 07.03.1981 of the

Collector pursuant to a selection process and was posted

at Integrated Tribal Development Agency (ITDA), Jeypore.

Such selection and appointment was stated to have been

made in pursuance of the instructions of the Government

in the erstwhile CD and SW Department in letter no. 5396

/CD dated 24.05.1978. The petitioner joined on

23.03.1981 and his Service Bank was opened. By letter

dated 20.12.1984, the erstwhile Harijan and Tribal

Welfare Department of Government requested all the

project administrators of ITDA to furnish require,

information as it has been decided to regularize the

services of 15 Junior Engineers working in different ITDAs

by adjusting them in the cadre of Junior Engineer in any

Engineering Department of the State. In the meantime,

the petitioner was transferred to ITDA, Rayagarh as

Junior Engineer as per order of the Government where he

served as such from 01.11.1988 to 20.07.1992. He was

thereafter transferred to ITDA, Phulbani as per

Government order where he worked as such from

20.07.1992 to 18.10.1996. He was also transferred

thereafter to ITDA, Niligiri and ITDA, Baliguda. Since

persons similarly placed as the petitioner in other

departments were considered for promotion to the post of

Assistant Engineer and his case was not considered, he

submitted a representation on 21.02.2001 to the Director

and Additional Secretary, S.T. & S.C. Development

Department of the Government. The said representation

was not considered and in the meantime, the petitioner

was allowed TBA scale of pay as per order dated

10.08.2007 of the Government. The petitioner was granted

the benefits of revised scale of pay as per ORSP Rules,

1985 and 1996, TBA scale of pay and provident fund from

time to time. The Junior Engineers working in the Water

Resources Department were upgraded to Assistant

Engineer as per Government order dated 11.09.2013, but

the petitioner's case was not considered on the ground

that he was directly appointed as Junior Engineer in an

agency under ST & SC Development Department, which is

a society registered under the Societies Registration Act,

1860 and the said department does not have a separate

engineering cadre. The above was communicated by letter

dated 05.12.2013 of the Government. While working at

ITDA, Phulbani, the petitioner retired from Government

service on attaining the age of 58 years w.e.f. 30.04.2014.

Provisional pension was sanctioned by opposite party no.5

by order dated 01.05.2014. By a subsequent letter dated

09.06.2014, the Government informed the opposite party

no.5 that the petitioner is not a regular Government

servant being directly recruited by the ITDA and hence he

is not entitled to get pensionary benefits under OCS

(Pension), Rules, 1992. Consequently, the opposite party

no.5 informed the petitioner of the Government decision.

It is claimed by the petitioner that two other persons,

namely, Prakash Mishra and Purna Chandra Sahu who

were also appointed by ITDA (ITDP) were given pensionary

benefits, but the petitioner was deprived. Challenging

such decision of the Government, the petitioner

approached the erstwhile Administrative Tribunal in O.A.

No.2103(C) of 2016 claiming the following relief:-

"Under the circumstances it is humbly prayed therefore, that the Hon'ble Tribunal may graciously be pleased to quashed the order date 15.07.2016 issued by Respondent No.5 under Annexure-12 as it has been passed by an incompetent authority.

And further be pleased to direct the Respondents to sanctioned and disburse pension DCRG and other retirement benefits to the applicant forthwith with interest at the prevailing bank rate by treating him as an employee of the Govt."

2. The said O.A. has since been transferred to this

Court and registered as the instant writ petition.

3. A counter affidavit has been filed on behalf of the

opposite parties. It is stated that the petitioner was a

directly recruited staff of ITDA, Jeypore. The Government

in ST & SC Development Department have decided in

principle that employees directly recruited by the ITDAs

are not treated as regular Government servants since the

ITDAs are established and registered under Societies

Registration Act, 1860. As such, the petitioner is not

entitled to get pensionary benefit as a regular Government

employee. As regards the representation submitted by the

petitioner for promotion, it is stated that the same was not

considered due to non-availability of suitable and eligible

candidates. It is also stated that the opposite party no.5

wrongly sanctioned provisional pension in favour of the

petitioner though he is not eligible for the same. As

regards the employees who were granted pension despite

working in the ITDAs, it is stated that Purna Chandra

Sahu was appointed by the Tahasildar and Prakash

Mishra was appointed by the Collector.

4. The petitioner filed a rejoinder. It is stated therein

that ITDA is controlled by the Government of Odisha in ST

and SC Development Department and therefore, the

petitioner is entitled to pensionary benefits even if it is

registered under the Societies Registration Act. The

agency functions under the administrative control of the

said department, which also provides Financial Assistance

in the form of grant-in-aid with a view to streamlining the

matter relating to recruitment and conditions of service in

respect of persons working in ITDA. It is further stated

that persons appointed along with the petitioner in other

department have been given promotion to the next higher

post but his case was ignored. As regards non-

consideration of his representation dated 21.02.2001, it

stated that nothing was communicated to him at any

point of time. He also stated that his counter parts serving

in other departments were upgraded to the post of

Assistant Engineer ignoring his case which amounts to

discrimination. It is further stated that even though the

ITDA is an agency registered under the Societies

Registration Act, it is under the administrative control of

the Government. Persons working in similar agencies like

the CDA and OREDA have been getting pensionary

benefits as per judgments passed by this Court in

different cases. It is also stated that the petitioner having

received all benefits like revision of pay, increments in DA

etc. like regular employees, is entitled to pensionary

benefits also.

5. Heard Mr. Satyjit Behera, learned counsel for the

petitioner and Mr. N.K. Praharaj, learned Additional

Government Advocate for the State.

6. Mr. Behera would argue that the petitioner having

been appointed by the Collector after undergoing a

process of selection cannot be treated differently than

regular Government employees more so as he has received

all service benefits during his service career as are

extended to regular Government servants. Mr. Behera

further submits that ITDA is an agency under the control

of the Government and therefore its employees like the

petitioner cannot be deprived of the benefits as are

available to other Government employees. It is also argued

that the initial appointment was based on order of the

Government issued in respect of 15 Junior Engineers

including the petitioner. That apart, Mr. Behera has

referred to the decision of this Court rendered in W.P.(C)

No. 9279 of 2015 and W.P.(C) No. 8401 of 2016 and batch

in support of his contention that despite being a society

registered under the Societies Registration Act, the

employees of the ITDA and entitled to receive all such

benefits as available to other Government employees.

Mr. Behera has also referred to the case of one

Suratha Mallik who has received pension as per order

passed by the erstwhile OAT. Concluding his argument,

Mr. Behera submits that the petitioner was all along

treated as a Government employee and his retirement was

also stated as 'retirement from Government service' and

therefore, it is not open to the opposite party to take a

stand at this belated stage that he is not entitled to

pensionary benefits.

7. Per contra, Mr.N.K. Praharaj argues that ITDA is

a society registered under the Societies Registration Act,

1860 having its own bye-laws and memorandum of

association. The Government may have extended some

financial assistance but the same does not change the

character of the agency from a society to a Government

undertaking. Mr. Praharaj further argues that extension of

benefits like revision of pay etc. by themselves do not

prove that the petitioner was a regular Government

employee. In so far as pension is concerned, Mr. Praharaj

argues, the same is available only to regular Government

servants, which the petitioner is not. Therefore, his claim

was rightly rejected. It is further argued that since

provisional pension was wrongly sanctioned, the same

was withheld.

8. From the rival contentions noted above and on

the backdrop of undisputed facts of the case it is evident

that the moot question that falls for consideration is,

whether the petitioner having been appointed by the ITDA,

Jeypore can be treated as a Government employee for the

purpose of availing pension and other pensionary benefits.

9. Reference to the appointment order dated

07.03.1981, copy of which is enclosed as Annexure-1 to

the writ petition, reveals that the same was issued by

order of the Collector, Koraput, pursuant to instructions

communicated in letter no. 5396/CD dated 24.05.1978 of

Government in CD and SW Department. It further reveals

that the said order was apparently a general order issued

in respect of some diploma holders wherein the

petitioner's name found place at serial no.12 and he was

posted in Jeypore ITDA. Despite several orders, the

aforementioned letter dated 24.05.1978 of the

Government was not produced for perusal of the Court.

10. Be that as it may, it can be safely inferred that

the appointment of the petitioner was not an isolated one

but an appointment made pursuant to a decision of the

Government and he was posted in ITDA, Jeypore. The

Collector being the Chairman of the ITDA issued the

appointment order. It has been argued that the petitioner

must be held to be an employee of ITDA, which is not a

Government concern but a society registered under

Societies Registration Act. There is no dispute that ITDA,

Jeypore is a society registered under the Societies

Registration Act on 15.09.1979 as per copy of the bye-

laws and a rules and regulations produced by the State

Counsel. The memorandum of association of ITDA, lists

its objective as under:-

"III. The main objective of the society shall be:

i) The formulation of a comprehensive long-term and annual plan for the integrated socio-

economic development of the operational are of the Society with main focus on the tribals inhabiting. The plan will follow the guidelines issued by Government of Orissa from time to time and will indicate the total programme to be taken up with funds flowing from Government of Orissa, Government of India and the Financing Institutions.-

ii) Implementation of such a plan by taking execution of schemes directly or through private, co-operative or public sector agencies with assistance received from Government of Orissa, Government of India and Institutional agencies and co-ordinating the execution of schemes taken up by other agencies of Govt.

iii) Undertaking such other activity from time to time as may be deemed necessary, conducive, incidental or ancillary for the integrated development of the area and objectives of the Society."

11. It is further forthcoming from the materials on

record that the governing body of the society being headed

by the Collector is comprised of people's representatives

and Government Officers of the area in question and

officials of some banks. A reading of the rules and

regulations reveals that power is vested on the Governing

body to create or sanction any new posts of any category

subject to the limitation as the Government of Odisha may

from time to time impose and delegate powers to any

competent authority as it may deem fit for making

appointment to the post. The above shows that the

Government has deep and pervasive control over the

affairs of the society (ITDA). As was held by a seven Judge

Bench of the Apex Court in the case of Pradeep Kumar

Biswas vs. Indian Institute of Chemical Biology,

reported in (2002) 5 SCC 111.

"The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be-whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."

Examined in light of the above principles, it is

seen that the Government, particularly through its ST and

SC Development Department exercises substantial control

over the functioning of the ITDAs. It not only provides

financial grants but also exercises administrative control

as would be evident from reference to the facts narrated

hereinafter.

12. In the communication bearing no.148/ITDA dated

18.01.2010 issued by the project Administrator, ITDA,

Baliguda (enclosed as a part of Annexure-7 series), the

detailed service particulars of the petitioner have been

given in a tabular form, which is reproduced herein

below:-

SL Name of Office Period of service Remarks No. where he From To worked.

1 I.T.D.A. 23.03.1981 31.10. 1988 Appointed as Sub-Asst.

              Jeypore    as                                Engineer in Jeypore ITDA
              Sub-Asst.                                    vide Order No.1740/VII-
              Engineer                                     7/81 Dev. Dtd.7.3.81 of
                                                           Collector,   Koraput    and
                                                           joined on 23.3.81 A.N.
       2      ITDA,            1.11.1988    20.07.1992     Transferred       to   ITDA
              Rayagada                                     Rayagada as Jr. Engineer
                                                           vide Govt. in H&TW Deptt.
                                                           Order NO.19899 dated
                                                           29.06.1988 & relieved from
                                                           ITDA, Jeypore vide order
                                                           No.3876 dated 31.10.1988
       3      Phulbani ITDA    20.07.1992   18.10.1996     Transferred      in   ITDA,
                                                           Phulbani as Jr. Engineer
                                                           vide Govt. in H&TW Deptt.
                                                           Order     No.20661    dated
                                                           29.06.1992 & relieved on
                                                           F.N. of 20.07.1992 from
                                                           ITDA, Rayagada vide order
                                                           No. 2338 dated 25.7.1992
       4      Nilagiri, ITDA   19.10.1996   03.07.2002     Transferred to ITDA, Nilgiri
                                                           as Jr. Engineer vide Govt.
                                                           in Welfare Deptt. Order No.
                                                           22502 dated 13.09.1996 &
                                                           relieved     from     ITDA,
                                                           Phulbani      vide     order
                                                           NO.1483 dated 18.10.1996
       5.     Balliguda,       4.07.2002    Till date      Transferred      to   ITDA,
              ITDA                                         Balliguda as Jr. Engineer
                                                           vide Govt. in SSD Deptt.
                                                           Order     No.20305    dated
                                                           11.06.2002 & relieved from
                                                           ITDA, Nilagirui on 3.7.2002
                                                           F.N. vide o No. 683 dtd.
                                                           3.07.02.

Thus, on every occasion, the petitioner was

transferred from one ITDA to another as per order passed

by the Government. This clearly reveals that the

Government exercises direct administrative control over

the employees, at least in respect of Junior Engineers like

the petitioner engaged in the ITDAs. This also suggests

that even though the petitioner was initially posted in

ITDA, Jeypore, it would be incorrect to treat him as an

employee exclusively of the said ITDA, as otherwise, he

could not have been transferred to as many as four ITDAs

after being so appointed. Therefore, the stand taken by

the Government that the petitioner is an employee of the

society is not tenable.

13. There is no dispute that the petitioner has been

granted all service benefits such as revised scale of pay as

per ORSP Rules, 1985 and 1996 and also TB scale of pay

along with the RACP etc. as are applicable to regular

Government employees. Two employees, namely, Prakash

Mishra and Purna Chandra Sahu who were appointed as

Statistical Assistant and Peon respectively in different

ITDPs (ITDA) and all through served in such ITDAs till

their retirement were granted pension. The Government in

its counter has given a somewhat vague explanation that

Prakash Mishra was appointed by the Collector while

Purna Chandra Sahu was appointed by the Tahasildar.

This, to say the least, does not answer the query as to how

they could be granted pension if they were employees of

the ITDA.

14. From a conspectus of the discussion made herein

before thus, it transpires that the ITDA, notwithstanding

its status as a society is an instrumentality of the State. In

so far as the petitioner is concerned, the administrative

control exercised over him by the Government by

transferring him from one ITDA to another only goes to

show that he is a regular Government servant and cannot

be treated as an employee of ITDA, Jeypore only. Even

otherwise nothing has been brought on record by the

State to show as to on what basis the employee of a

particular society could be transferred to another society.

The memorandum of association and rules and

regulations of the society do not contain any such

provision. In any case one ITDA being a society cannot

obviously be held to possess the power of transfer of its

employees to another society and therefore, only the

authority exercising power over all such societies, i.e., the

Government, can do so. This Court therefore, finds that

denial of pension and pensionary benefits to the petitioner

on the unconscionable ground that he is not a regular

employee of the Government is not only unjustified and

illegal but also unfortunate for the reason that the State,

which is expected to be a model employer cannot take

such plea to thwart the legitimate dues of its employees.

This Court further finds that the provisional pension was

rightly granted but withdrawn/withheld basing on the

decision taken by the Government, which cannot be

countenanced in law. This Court therefore, holds that the

petitioner is entitled to pension and pensionary benefits as

admissible in law.

15. For the foregoing reasons therefore, the writ

petition is allowed. The impugned order under Annexure -

12 is hereby set aside. The opposite parties-authorities are

directed to take steps to grant pension and pensionary

benefits as admissible in law to the petitioner without any

further delay and in any case, not later than two months

from the date of communication of this order or on

production of certified copy thereof by the petitioner.

...............................

Sashikanta Mishra, Judge

orissa High Court, Cuttack, The 6th December, 2022/ B.C. Tudu