Orissa High Court
Rabindra Kumar Jena vs State Of Odisha And Others on 7 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 36009 of 2021
Rabindra Kumar Jena .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others ... Opposite Parties
Mr. P.C. Das, ASC
W.P.(C) No. 34511 of 2020
Ranjit Mahanta .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. P.C. Das, ASC
W.P.(C) No. 27425 of 2021
Bijaya Kumar Patro .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. P.C. Das, ASC
W.P.(C) No. 4607 of 2022
Bailochan Sahoo .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. P.C. Das, ASC
// 2 //
W.P.(C) No. 5686 of 2022
Basanti Behera .... Petitioner
Mr. Sidheswar Mallik, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. P.C. Das, ASC
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
Date of hearing: 10.11.2022 Date of Order : 07.12.2022
Order No.
05. 1. These matters are taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Since similar issues are involved in all the writ petitions,
they are heard together and disposed of by this common order.
3. Heard Mr. Sidheswar Mallik, learned counsel for the
Petitioner and Mr. P.C. Das, learned Additional Standing Counsel
appearing for the State-Opposite Parties in all the writ petitions.
Perused the record.
4. These writ petitions have been filed by the Petitioners
seeking a direction to the Opposite Parties to grant pension, gratuity
and other post retiral benefits as due and admissible to them by
counting their entire period of service including the service period as
NMR for the purpose of pension with a further direction to the
// 3 //
Opposite Parties to pay unutilized leave salary by counting the entire
period of service from the date of initial joining.
5. However, for the sake of brevity of facts, W.P.(C) No.36009
of 2021 (Rabindra Kumar Jena v. State of Odisha and others) is
taken up for consideration.
On perusal of the said writ petition, the factual matrix of the
case, as culled out, is that the Petitioner was initially was appointed
as NMR Wireman on 13.11.1981. Thereafter, he was brought over to
the regular establishment w.e.f. 30.10.2009. Finally, he has retired
from service w.e.f. 30.06.2021 on attaining the age of
superannuation. Therefore, the Petitioner has retired from service as
regular employee after putting in a continuous and uninterrupted
service for 39 years and out of which, 10 years 5 months was in
regular pensionable establishment.
6. Mr. S. Mallik, learned counsel for the Petitioners submits
that although the Petitioners have retired w.e.f. 30.06.2021, but they
have not been given pensionary benefits till date by the Opposite
Parties. The pension papers pertaining to the Petitioners which were
submitted before the authorities have been returned on the ground
that since the petitioners have been appointed after 2005, they are
not entitled to any pensionary benefit under the old pension Rules.
// 4 //
7. It is contended by the learned counsel for the Petitioners that
position of law is no more res integra as has been laid down by the
judgment delivered by Hon'ble the Apex Court as well as this Court
to the effect that the period of service rendered as NMR shall be
taken into consideration while calculating the pensionary benefits
which is due and admissible to an employee who worked under a
work charge establishment. Therefore, applying the aforesaid
principle to the facts of the Petitioners case, who have rendered 39
years of continuous service starting from 13.11.1981 upto
30.06.2021, the Petitioners are entitled to pensionary benefits. In the
aforesaid context, learned counsel for the Petitioners also relied upon
the decisions rendered by this Court in State of Odisha v. Abhaya
Ch. Dash (W.P.(C) No.1473 of 2014 decided on 7.3.2014 by a
Division Bench), Abhaya Charan Mohanty v. State of Odisha &
Ors. (WPC (OAC) No.3494 of 2013 decided on 14.07.2021) and
Chandra Nandi v. State of Orissa and others, reported in 2014 (I)
OLR - 734 decided by a Division Bench of this Court, which was
eventually carried in appeal to the Hon'ble Apex Court at the
instance of the State and the Hon'ble Supreme Court has dismissed
the appeal and upheld the decision rendered by this Court in the case
of Chandra Nandi (supra).
// 5 //
8. It is also contended by the learned counsel for the Petitioners
that in the case of employees, who are similarly placed with the
Petitioners and had earlier approached the Odisha Administrative
Tribunal. Pursuant to the order passed by the Odisha Administrative
Tribunal, some of the similarly placed persons have been extended
with the benefit of pension vide Officer Order Nos.4098 dated
27.8.2021 and 3384 of 26.8.2021. It is further contended by the
learned counsel for the Petitioners that the Petitioners are similarly
situated with the persons who have been extended the benefit of
pension by the State Government. Therefore, the conduct of the
Opposite Parties in denying the pensionary benefits to the Petitioners
is violative of the principle of natural justice as well as Article 14 of
the Constitution of India. In such view of the matter, learned counsel
for the Petitioner prays that the conduct of the Opposite Parties in
refusing to accept the pension papers of the Petitioners is illegal and
further prays for a direction to the authorities to consider the case of
the Petitioners in the light of the judgment referred to hereinabove
and to sanction the pension and disburse the same in favour of the
Petitioners within a stipulated period of time.
9. Learned counsel for the State, on the other hand, submits
that since the Petitioners were brought over to the regular
// 6 //
establishment after the OCS (Pension) Rules, 1992 was amended in
the year 2005, therefore, they are not entitled to pensionary benefits
under the old pension rules. As such, no fault could be found with
the Opposite Parties in returning the pension papers of the present
Petitioners.
10. In reply to the aforesaid contention raised by the learned
counsel for the State, learned counsel for the Petitioners submits that
the Petitioners were appointed much prior to the amendment of the
OCS (Pension) Rules, 1992in the year 2005. Therefore, they shall be
governed by old pension rules and the amended rule of the year 2005
has no applicability to the facts of the present case. It is further
contended by Mr. Mallik that in view of the settled position of law,
while calculating the pensionary benefits, the Opposite Parties are
under a legal obligation to take into consideration the period of
service rendered by the Petitioners as NMR Wireman w.e.f.
13.11.1981 and, as such, they have rendered continuous and
uninterrupted service of 39 years which makes the Petitioners
eligible to get the pensionary benefits as due and admissible to them.
11. Further, taking into consideration the period as NMR
employee for the purpose of calculation of pensionary benefits,
learned counsel for the Petitioners relied upon the judgment in the
// 7 //
case of Prem Singh v. State of Utter Pradesh and Others, reported
in (2019) 10 SCC 516 wherein the Hon'ble Supreme Court had an
occasion to consider the eligibility of work charged employees to get
pensionary benefits. In the context of sanction of pensionary benefits
to work charged employees, the Hon'ble Supreme Court has
observed that some of the employees, who have not been regularized
in spite of the fact that they have rendered the services for 30 years
or more, furthermore some of them have been superannuated and
since they have worked in the work-charged establishment and not
against any particular project, their services ought to have been
regularized under the Government instructions and even as per the
decision of the Hon'ble Supreme Court in State of Karnataka v.
Umadevi, reported in (2006) 4 SCC 1.
12. Moreover, in the case of Umadevi (supra), the Hon'ble
Supreme Court has held that the employees, who have rendered
more than ten years of service, were directed to be treated as regular
employees subject to the rider that they shall not be entitled to any
dues in respect of difference in wages had they been continued in
service regularly before attaining the age of superannuation. Further,
in the said judgment, it was made clear that they shall be entitled to
receive the pension as if they have retired from the regular
// 8 //
establishment and the services rendered by them right from the day
they entered the work-charged establishment shall be counted as
qualifying service for the purpose of calculation of pensionary
benefits.
13. Learned counsel for the Petitioners further contends that this
Court, while considering the cases of similarly situated work
charged employees, on a number of occasions, has come to a
conclusion that the employees who have been working on NMR
basis for a considerable period of time, particularly more than 10
years and were subsequently brought over to the regular
establishment shall be considered for the purpose of grant of
pensionary benefits. It has also been held that in the event, it is
found that the services rendered in the regular establishment fall
short of the qualifying service period, the same shall be adjusted
with the period of service already rendered as NMR or any other
mode of ad hoc employment. Therefore, taking into consideration
the long period of service of the present Petitioners, it is further
contended by the learned counsel for the Petitioners that the
Petitioners are lawfully entitled to get the pensionary benefits,
moreso since similar benefits have already been extended to other
similarly situated persons in the State of Odisha.
// 9 //
14. To decide the issue involved in the present case, i.e. with
regard to applicability of OCS Pension Rules, 1992, the factual
background of the present case is required to be re-visited at this
stage. The petitioner was initially appointed as NMR, Wireman on
13.11.1981 and was posted against the regular vacant post under
GED No-III, Sambalpur. Thereafter, the petitioner was brought over
to regular establishment vide Order No.6175 dated 31.10.2009. As
such, the petitioner has put in service for a total period of 39 years
out of which, 10 years and five months in regular pensionable
establishment. Thereafter, he took retirement from service w.e.f.
30.06.2021, i.e., on attaining the age of superannuation. After
retirement although the petitioner submitted his pension papers, the
same was returned on the ground that the petitioner is not eligible to
get pension as he was appointed in regular service in the year 2009
i.e. after the amendment to the OCS Pension Rules in the year 2005
by virtue of notification dated 17.09.2005. So far the eligibility of
the petitioner to get pensionary benefits is concerned, the same has
to be determined by referring to various provisions of OCS Pension
Rules, 1992. In such view of the matter, the ineligibility as alleged
by the learned State Counsel for consideration vide notification
dated 17.09.2005 a new sub-rule(2) Rule-3 of the OCS Pension
Rules, 1992 was added and the same was to come into effect from
// 10 //
01.01.2005 for better appreciation newly added sub-rule (2) of Rule-
3 has been quoted herein below:-
"(2) A Government servant who is transferred permanently to
a service or post to which these rules apply from a service or
post to which these rules do not apply shall become subject to
these rules: Provided that it shall be open to him, within six
months of the date of issue of the order of his permanent
transfer, or if he is on leave on the said date, then, within six
months of his return from leave, whichever is later, to opt to
be governed by the pension rules to which he was subject
immediately before the date of his transfer. The option shall
be exercised in writing and communicated to the authority
making such order of transfer.
(3) The option, once exercised, shall be final.
(4) Notwithstanding anything contained in these rules, all
persons appointed under the Government of Odisha with
effect from 1st day of January, 2005 shall not be eligible for
pension as defined under sub rule (1) of rule 3 of the said
rules but shall be covered by the defined contribution pension
scheme as specified below: (Vide Finance Department
Notification No.44451/F., dtd.17.09.2005 and Finance
Department Circular No-Pen40/2005-16950(255)/F., dated
02.04.2007).
(i) The monthly contribution would be 10% of the salary and
Dearness Allowance to be paid by the employee and the
// 11 //
Government would also provide a matching contribution. The
contribution so made would be deposited in a non
withdrawable pension tier-I account. Such funds will be
invested by pension fund managers as approved by Pension
fund Regulatory and Development Authority (PFRDA) under
different categories of scheme which would be a mix of debt
and equity. The fund managers would give out easily
understood information about the performance of different
investment schemes so that the individual Government
employee would be able to make informed choices about
which scheme to choose.
(ii) In addition to the above provision, each individual may
also have a voluntary tier-II withdrawable account at his
option. This option is provided as General Provident Fund
will be withdrawn for employees recruited to the State
Government Service with effect from 1st January, 2005.
Government will make no contribution into this account. In
tier -II system, the individual may subscribe 10% of his
salary and these assets would be managed through exactly the
above procedure. However, the employee would be free to
withdraw part or all of second tier of his money at any time.
This withdrawable account does not constitute pension
investment and would attract no special tax treatment.
(iii) At the time of retirement, Government servant will
receive the lump sum amount of 60% deposited in pension
// 12 //
tier-I account as pension wealth and it is mandatory to the
Government servant to invest remaining 40% of his pension
wealth to purchase as annuity from an Insurance Regulatory
and Development Authority regulated life insurance
company. The annuity shall provide for pension for the life
time of the employee and his dependent parents and his
spouse at the time of retirement. The individual would
receive lump sum of the remaining pension wealth, which he
would be free to utilise in any manner. Individuals would
have the flexibility to leave the pension system prior to age of
58 years or 60 years as the case may be. In such case the
mandatory annuitisation would be 80% of the pension wealth.
Provided that above provision shall not apply to the persons
who are appointed under job contract and work charged
establishments prior to 01.01.2005 and brought over to the
regular establishment on or after 01.01.2005. (Vide Finance
Department Notification No.24142/F., dtd.04.09.2015)"
"4. Protection of Privilege
Nothing in these rules shall operate to deprive any
Government servant of any right or privilege to which he is
entitled;
(a) by or under any law for the time being in force; or
(b) by terms of any agreement subsisting between such
person and the Governor at the commencement of these rules;
or
// 13 //
(c) to confer on him any right or privilege in respect of any
matter for which specific provision is made by the terms of
any agreement between such person and the Governor."
In view of the aforesaid Sub-rule(4) all persons appointed
under the Government of Odisha from 01.01.2005 shall not be
allowed for pension under Rule-3(ii) of the aforesaid Rules, who
shall be covered by defined contribution pension scheme as
specified in the said sub-rule.
15. Learned counsel for the State has taken a plea that the
petitioner was regularized w.e.f. 30.10.2009, therefore, in view of
sub-rule(4) of Rule-3, he is not entitled to pension under the OCS
Pension Rules, 1992. In such view of the matter, learned counsel for
the State supports the action of the Government in returning the
pension papers of the petitioner.
16. Learned counsel for the petitioner, on the other hand,
submits that rule 10 of the OCS Pension Rules, 1992 provides that
subject to provisions of these rules, qualifying service of the
Government employee shall commence from the date he takes
charge of the post to which he is first appointed either substantively
or in officiating or temporary capacity. Further referring to Rule-12
of the Rules, 1992, it is contended that the same also provides that
notwithstanding anything contained in the provisions of Clauses (1)
// 14 //
and (2) of Rule-11, Government may, in the case of service paid
from the consolidated fund of the State (a) declared that any class of
service shall qualifying for pension (b) in individual cases, and
subject to such conditions as they may think fit to be imposed in
each case and allow service rendered by a Government servant to
counted for pension.
17. Further referring to Rule 18(3) of the Rules, 1992, it is
submitted by learned counsel for the petitioner that Sub-rule(3) of
Rule 18 provides that a person who is initially appointed by the
Government in work charged establishment for a period of five years
or more is subsequently appointed to the same or another posts in a
temporary or substantive capacity in a pensionable establishment
without interruption of duty the period of service so rendered in
work charged establishment shall qualify for pension under the rules,
1992. Moreover, attention of this Court was also drawn to that
provision 18(4) whereunder the Government may, by general or
special order; prescribe any class of service or posts, which were
previously born under work charged establishment or paid from
contingencies to be pensionable. Rule 20 stipulates that the service
as an apprentice shall qualify for pension, if such service is followed
by regular appointment to Government service. He further submits
that in the present case the petitioners although appointed on NMR
// 15 //
basis but subsequently, they were regularized without any break in
service. Therefore, in view of the provisions in the OCS Pension
Rules, 1992, the petitioner is entitled to get pension and other post
retirement benefits by counting the entire service period as
qualifying service period.
18. On a careful analysis of facts, this Court is convinced that
the petitioner was initially appointed in the work charged
establishment and that the nature of work he was performing was
regular and perennial in nature. After working for almost three
decades without any break and interpretation that too for a paltry
amount, the service of the petitioner was regularized only w.e.f.
31.10.2009. This conduct definitely attracts the penal provision for
exploitation of work force.
19. On a plain reading of Rule-18 of the 1992 Rules, it appears
that in Sub-rule(2) of Rule-18 the period of service in the work
charged establishment excluded for the purpose of counting the
qualifying period for pensionary benefits. In Sub-rule(3) of Rule-18,
it has been provided that notwithstanding anything contained in
clause(2) of Sub-rule(2) of Rule-18 a person who is initially
appointed by the Government in a work charged establishment for a
period of five years or more and he is subsequently appointed to the
same or another post in temporary or a substantive capacity in a
// 16 //
pensionable establishment without interruption of duty, the period of
service so rendered in work charged establishment shall qualify for
the pensionary benefit under this rule.
20. In view of the provisions contained in Sub-rule(3) of Rule-
18 the entire work charged period of service rendered by the
petitioner shall be counted while calculating the pensionary benefits
payable to the petitioners. There is no ambiguity in the said
provision and the same stand in absolute clear terms. Therefore, any
argument that Rule 18(3) stands in the way and debars persons like
the petitioner to get pensionary benefits would be illegal and
fallacious.
21. The next question that falls for consideration is whether the
new Special Rule(4) to the Pension Rules 1992 which was amended
in the year 2005by virtue of Notification Dated 17.09.2005 creates
an embargo for the petitioner to get pension under of OCS Pension
Rules, 1992. The embargo newly introduced by Special Rule 4 to the
Rules, 1992 in the year 2005 provides that all persons appointed
under the Government of Odisha with effect from 1st day of January,
2005 shall not be eligible for pension as defined to Sub-rule(1) of
Rule-3 of the Rules, 1992. In new Sub-rule(4) the word that has been
used as "appointed" and the cut-off date is 01.01.2005. At this
juncture, this Court requires to examine as to whether the word
// 17 //
"appointed" used in Sub-rule(4) would be restricted in its application
only to regular appointment/recruitments against the sanctioned post
after 01.01.2005. The word "appointment" or "appointed" has not
been defined in the Rules, 1992. However, the definition clause
under 1992 provides that the words which have not been defined in
the said Rules, shall ordinarily have the same meaning as has been
provided under the Odisha Service Code. Under the Odisha Service
Code appointment has been categorized in several categories further
there exists no straight jacket definition of the word appointment in
Odisha Service Code. Therefore, in absence of any specific
definition of the word in the Rules, the same would be interpreted in
its common parlance and the way it is understood generally. Further,
this Court cannot interpret a particular word so as to restrict its
meaning, which is not there in the rule book such an approach would
amount re-casting or rewriting the rules. Under such circumstances,
this Court would obviously adopt the golden rule of interpretation
and give the word its common meaning and the way its ordinarily
understood i.e. without any categorization or classification.
Therefore, the embargo which was imposed by introducing new
Sub-rule(4) is general in nature and applies to all appointments
irrespective of all the classification category, nature etc. made after
// 18 //
01.01.2005. And such appointments made after 1.1.2005 shall be
governed by the new rule appended to Sub-rule(4) of the Rule, 1992.
22. Considering the fact that the petitioner was initially
appointed by the Government although in a work charged
establishment and allowed to continue in service uninterruptedly for
a period of three decades and it is only w.e.f. 31.10.2009, the service
of the Petitioners were regularized, in such factual background, this
Court is of the considered view that the embargo imposed by
introduction of new Sub-rule(4) would not be applicable to the facts
of the present case. Even otherwise also learned counsel for the State
does not dispute the fact that the petitioner was appointed by the
Government prior to 2005 although on ad hoc basis. However, it was
submitted that he was appointed in a work charge establishment in
the year 1981 and, therefore, they are not entitled to be coered under
the Pension Rules, 1992.
23. Furthermore, considering the fact that the petitioner has
rendered more than 39 years of continuous service coupled with the
fact that he was initially appointed by the Government in the year
1981 in the work charged establishment, this Court is bound to give
a liberal interpretation to the rules and would like to remove the
obstacles which stand in the way of the petitioner in getting the
pensionary benefits after working uninterruptedly for a period of
// 19 //
almost four decades. This view is supported by a judgment of
Hon'ble Supreme Court in the case of V. Sukumaran vrs. State of
Kerala and another; reported in (2020) 8 SCC 106, which was
delivered by relying upon two other judgments of Hon'ble Supreme
Court in case of V. Lakra vrs. Union of India reported in AIR 1983
SC 130 and Deokinandan Prasad vrs. State of Bihar ; reported in
AIR 1971 SC 1409 holding that the pension provisions must be
given a liberal consideration as social welfare measure.
24. In Prem Singh vrs. State of U.P. and others ; reported in
(2019) 10 SCC 516, it was observed that appointment of work
charged employee not made for a particular project work and the
nature of work was regular and perennial in nature on a monthly
salary where employees were required to cross-efficiency bar and
were also subjected to transfer like regular employees, as such, their
services were not qualitatively different from regular employees and
hence the Hon'ble Supreme Court further held that it would be
unfair on the part of the State Government to take work from them
for periods depriving them of their due emolument, during period
they works on less salary in work charged establishment and also
declining to count that period as qualifying service for pensionary
benefits which amounts to adopting exploitative device and it was
further held that in the said case the service rendered in work
// 20 //
charged establishment directed to be treated as qualifying service for
grant of pension. In the aforesaid reported cases, the Hon'ble
Supreme Court also directed to count service rendered in work
charged establishment for the purpose of pensionary benefits by
going to the extent of reading down Rule-3(8) of U.P. retirement
benefit Rules and striking down para-6.6.9 and regulation of Civil
Service Regulation of U.P.
25. In the case at hand, the services rendered by the Petitioners
in work charge establishment also qualifies for the purpose of
calculating their pensionary benefits under Rule18(3) of the Rules,
1992. Additionally, the newly added Sub-rule(4) which applied to
the appointments made after 01.01.2005 will have no application to
the case of the Petitioners, who were admittedly appointed in the
work charge establishment on 13.11.1981 and subsequently retired
from service w.e.f. 30.06.2021. Moreover, in absence of any rule
specifying any particular category of appointment in the newly
added Sub-rule(4) to Rule-3, it cannot be said that the petitioners
were not appointed prior to the cut-off date i.e. 01.01.2005.
Therefore, by taking into consideration, the initial date of
appointment i.e. 13.11.1981 as NMR Wiremen although on NMR
basis, it cannot be said that the petitioners were appointed prior to
01.01.2005 and, as such, the embargo Rule-3(4) would be attracted
// 21 //
to the facts of the petitioners case. Moreover, similarly situated
employees, who were initially engaged in work charged
establishment and were subsequently regularized have also been
extended with pensionary benefits under the OCS Pension Rules,
1992. In this context, learned counsel for the petitioners has also
filed several office orders under Annexure-11 series to the writ
petition.
26. Therefore, this Court directs the Opposite Parties to consider
the case of the Petitioners for pensionary benefits by permitting the
Petitioners to submit the pension papers afresh and in that event, if
the pension papers, in proper form, are submitted before the
authority concerned within a period of one month from today, the
authority concerned shall do well to consider the same and grant
pensionary benefits as due and admissible to the Petitioners within a
period of two months thereafter, if there are no other legal
impedement.
27. In view of the order passed hereinabove, W.P.(C) Nos.36009
of 2021, 34511 of 2020, 27425 of 2021 and 4607 of 2022 stand
disposed of and the remedies are to be worked out in terms of the
direction given in this case.
// 22 //
28. So far W.P.(C) No.5686 of 2022 is concerned, although the
above order analyzed the facts of W.P.(C) No.36009 of 2021 similar
to the facts of the W.P.(C) No.5686 of 2022, however, further
direction is required to be given in view of the fact that the claim of
the Petitioner has been rejected by the impugned order under
Annexure-6. Therefore, the impugned order under Annexure-6 to
W.P.(C) No.5686 of 2022 is hereby set aside and the authorities are
directed to consider the case of the Petitioner afresh in the light of
the order passed hereinabove.
29. With the aforesaid observations/directions, the above noted
writ petitions stand disposed of.
(A.K. Mohapatra)
Judge
Debasis/Jagabandhu
